BABOO SINGH Vs. RAM MANOHAR

JUDGEMENT

(1.) This appeal has arisen from a suit brought by the appellant for declaration, of his right to half of the tank in dispute and in the alternative for possession. Both the Courts below dismissed the suit as barred by limitation. The plaintiff is one Baboo Singh. The defendants are vendees from Amarjeet Singh and Bijai Bahadur Singh under a sale-deed, dated 27 April 1917. The relationship between the plaintiff Baboo Singh and the defendants vendors will appear from the following pedigree:

(2.) It has been found by both the Courts below that the tank in dispute, (No. 708 old and 851 new) was purchased at an auction by Daulat, who acted in that transaction on behalf of himself and his two brothers. Daulat died is sueless and his interest devolved upon his two brothers either by survivorship or by inheritance, a point which is not material, as in either case after the death of Daulat Singh the plaintiff's father and the father of the defendants vendors were co-sharers. Plaintiff succeeded to the interest of his father, while the defendants vendors succeeded to the interest of their father. On these facts there can be no doubt that the plaintiff and the defendant's vendors were co-sharers. There was controvergy in the lower Court as to whether Baboo Singh, was in actual enjoyment of the tank or whether Amarjeet Singh and Bijai Bahadur Singh alone were in possession. All of them being co-sharers, possession of any one of them must be considered to be constructive possession of all unless the person in actual possession ousted his co-sharers in denial of their rights. There is no suggestion either in the pleadings or evidence that before the sale-deed, dated 27 April 1917, Baboo Singh's right was denied by the defendants vendors or that Baboo Singh was in any manner ousted from the constructive possession which he must be deemed to have had. On the question of limitation there is another important point which both the lower Courts have overlooked and which has a. very important bearing on that point. The property in dispute is a tank with a belt of part land round about it. It is not suggested in evidence, nor is there any finding in the judgments of the lower Courts, that the tank and the belt of land surrounding it were capable of actual enjoyment. The tank does not appear to be one of those hollow lands which can be cultivated in particular seasons of the years or that it yields any crop of any kind, such as singhara. There is also no suggestion that it yielded any fish which could be the source of income to the owners of the tank. The sale-deed obtained by the defendants describes the property conveyed thereby as a tank measuring 4 bighas 17 biswas with three babool trees standing on its bhita. I have mentioned these facts in detail to show that the rightful owner cannot be considered to be out of possession only because he is not able to establish by evidence definite acts of possession. In such cases possession must follow title.

(3.) First of all the lower Courts addressed themselves to the question whether Articles 142 or 144 applies. They held that having regard to the allegations contained in the plaint Art. 142 is the proper article to apply. Having arrived at that conclusion, they addressed themselves to the further question as to whether the plaintiff established his possession within limitation, that is to say, whether the plaintiff had proved such acts of possession as could be considered to save limitation. As already stated, in this connection they completely ignored the fact that the property is not one in respect of which the plaintiff, or for the matter of that the defendants vendors, could have exercised any definite acts of possession. They also overlooked the fact that Baboo Singh and the vendors of the defendants being co-sharers, possession of one co-sharer is constructive possession of all. This is not the first case which has recently come to my notice in which subordinate Courts have viewed Art. 142, Limitation Act. in such a manner as to make it almost impossible for a plaintiff to establish his possession within limitation in cases in which the plaintiff may well be considered to be in constructive possession through others or his possession must follow his title having regard to the nature of the property. Where property in dispute consists of lands actually cultivated or of house capable of actual occupation and the plaintiff sues for possession of such property on the allegation that he was dispossessed by the defendant, Art. 142 is undoubtedly applicable and the plaintiff must show that his dispossession occurred within twelve years before the institution of the suit. In such a case it may be necessary for him to adduce evidence showing when his own possession ceased and that of the defendant or of any other trespasser began. But where the property is of such a nature that it is not capable of actual physical possession or where the property, though capable of physical possession, is in the occupation of one through whom the plaintiff can be in constructive possession, different considerations obviously apply. A man may be in possession of his property without actually occupying it. In considering therefore the question whether the plaintiff was dispossessed within twelve years or whether his possession discontinued within twelve years the nature of the property and the position of those actually occupying it if it is capable of actual occupation, must be taken into consideration.