RUKHDUSA Vs. TEJA

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The appellant brought a suit for possession of certain mango trees standing on an occupancy field in mauza Nagzari on the strength of a sale deed executed in his favour by one Mt. Rewabai on 21st April 1902. His suit was dismissed and an appeal preferred by him was also dismissed by the Additional District Judge, Khandwa. He has now preferred this second appeal. Admittedly these mango trees stood on the occupancy field held by Rewabai and were sold by her to the plaintiff-appellant by a registered sale-deed dated 21st April 1902, which is on the record as Ex. P-1. The appellant alleges that since the sale be has been in possession all along and enjoying the fruit of the trees until he was forcibly dispossessed in 1929 by the respondents, who are the malguzars of the village. The trial Court found that the sale was invalid as the trees could not be sold, but that the defendants were not in adverse possession of the trees for more than 12 years before the institution of the suit as they claimed. As, however, no title was conveyed by the sale-deed, the suit was dismissed. On appeal the lower appellate Court has upheld the finding with regard to the sale deed and has further found that the plaintiff could not obtain ownership by prescription against the defendents who are malguzars of the village. He therefore dismissed the appeal.

(2.) IN this Court the learned Counsel for the appellant contended that the finding with regard to the validity of the sale-deed was incorrect and that a good title was transferred by that deed. He further argued that the finding about adverse possession in the trial Court was in favour of the appellant and therefore, if the finding about the sale-deed was set aside, the claim of the plaintiff-appellant would have to be decreed.

(3.) AS regards adverse possession it may be noted that the appellant never put forward any such claim in the lower Courts and relied only on the title conferred on him by the sale deed (Ex. P-1). He now seeks to take advantage of the finding of the trial Court that the respondents failed to prove that they had been in adverse possession. I do not think, however, that he can take advantage of that finding, and it has been held by the lower appellate Court that the plaintiff could not obtain ownership by prescription against the defendants who are malguzars of the village. The Judge has referred to the case cited above, Hiria v. Mahomed Sirajuddin Khan (1908) 4 NLR 104. The argument put forward by the learned Counsel for the appellant was that Rewabai died in March 1917 and that the respondents did not prevent the appellant from taking the fruit of the trees until 1929 and that therefore by continuous possession and by taking of the fruit for 12 years, 1917 to 1929, the appellant had acquired a good title by prescription. Apart from the fact that, as already stated above, this plea was never raised in the lower Courts and should not therefore be allowed to be raised at this stage, I would point out that it is difficult to hold that possession was adverse in a case of this kind where no title was asserted to the trees and only the fruit was taken. In this connexion I have been referred by the learned Counsel for the respondents to Durga v. Atmaram (1890) 3 CPLR 160. The judgment in that case is very brief, but it is authority for the view that, where a malguzar is recorded as the owner of trees and a tenant or other person is permitted to take the fruit, there can be no question of adverse possession. In the present case it is true that the appellant was not a tenant of the land after the death of Rewabai, but there is nothing to show that the respondents prevented him in any way from taking the fruit of the trees after Rewabai's death until 1929 or that the appellant asserted a title adverse to the respondents. As the ease stands, I am not prepared to hold that any adverse pos-session has been proved.