BENI PRASAD Vs. GAUHAR ALI

JUDGEMENT

(1.) THIS second appeal arises out of a suit for profits. The plaintiffs-appellants acquired a share of one-third in Mahal Zamiruddin under a sale-deed executed in the year 1936 by Zamiruddin himself. According to the khewat, the cosharers in this mahal were Akbar Ali, Gauhar Ali and Zamiruddin each owning a one-third share. Akbar Ali and Gauhar Ali are the sons respectively of Wali Muhammad and Muhammad Ali. These two men were the sons of Kunain Mian who died about the year 1919. Kunain. Mian had a brother, Imamud-din whose son is Zamiruddin. When Kunain Mian died, Akbar Ali, Gauhar Ali and Zamiruddin were shown in the khewat as owning one-third each of the property which he had left. The entry was made with the consent of Wali Muhammad and Muhammad Ali. In the year 1923, there was a partition of the mahal and the property left by Kunain Mian was formed into a separate mahal. The entry in the khewat was that Akbar Ali, Gauhar Ali and Zamiruddin were the owners of a one-third share each in the new mahal after the partition. In 1927 Wali Muhammad and Muhammad Ali were adjudged insolvents and the Official Receiver alleged that this property belonged to them and not to their two sons and Zamiruddin. The insolvency Court recorded a decision in favour of the Official Receiver, but the latter does not appear to have taken any further steps against the property and the entries in the khewat continued as they had been before. In 1936, as we have already said, Zamiruddin sold his share to the plaintiffs. Thereafter the plaintiffs instituted the suit which has given rise to this appeal and were met by an objection on the part of Akbar Ali and Gauhar Ali that Zamiruddin had no title which he could transfer to the plaintiffs. The Courts below have held that Zamiruddin had no title. An oral will was set up but that was not proved. The plaintiffs fell back upon the argument that Zamiruddin had clearly a title by adverse possession since he had been in possession from the year 1919. The Courts below held that he had been in possession of his share up to the year 1927, but that there was no evidence that he had been in possession thereafter. It appears that Gauhar Ali was the lambardar of the mahal and that he collected the profits. The learned Judge of the lower appellate Court has said that there can be no presumption that he collected profits on behalf of Zamiruddin when there had been a finding that Zamiruddin had no title to the property. In our judgment the learned Judge has overlooked the provisions of Section 44, U.P. Land Revenue Act. There is a pre-/sumption from the entries in the khewat that Zamiruddin continued in possession of the property and it was for Akbar Ali and Gauhar Ali to prove positively that he had not been in possession. The learned Judge has, made a mistake in law in throwing the burden on the wrong party. The decision in 1927 as between the Official Receiver on the one hand and Akbar Ali, Gauhar Ali and Zamiruddin on the other is evidence that Zamiruddin had no title at that time, but it does not show that he was ousted from possession. It seems that Wali Muhammad and Muhammad Ali died some time between 1927 and 1936, but the learned Judge has said that there is no evidence upon the record to show when they died. It does not appear that Akbar Ali and Gauhar Ali are now in possession as the heirs and representatives of Wali Muhammad and Muhammad Ali. They appear to have been in possession in their own right throughout. The fact is that Akbar Ali, Gauhar Ali and Zamiruddin are shown in the khewat as being in possession in equal shares of this property. As there is a presumption that the entry in the khewat is right, it should be presumed that they were all three in possession. Up to 1927 Akbar Ali and Gauhar Ali admitted the title of Zamiruddin and there is nothing to show that after that date they contested his title or ousted him. They were themselves exactly in the same position as Zamiruddin after the decision in 1927 until such time as their two fathers died. In our judgment it must be presumed that Zamiruddin continued in possession of the property after 1927 and consequently his title by ad-verse possession matured.

(2.) THE result is that we hold that Zamiruddin had a title to transfer to the plaintiffs and we consequently allow this appeal and set aside the decrees of the Courts below. We remand the case to the trial Court for decision according to law as it has not so far been decided how much, is due on account of the profits. THE costs in the two appellate Courts Will abide the result and will be included in the costs of the trial Court. THE court-fees may be refunded.