BASIRUDDI SHEIKH Vs. MOBARAK MUNSHI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Khulna, modifying the decision of the Munsif of the same place. The suit was brought by the plaintiff to recover possession of certain property of which he had a lease. The first Court decreed the suit. The second Court modified the decree , giving the plaintiff possession of one- half. The plaintiff s case was that one Abdul was the original owner of the property who sold it to Meajan, who leased it out to the plaintiff as owner of the property in 1899. The plaintiff was in exclusive possession of the property until ousted by the defendant. The defendant alleged that Abdul had a brother named Gafur; and Gafur and Abdul granted a lease to the defendant s mother Pati Bewa. The Court held that the existence: of Gafur and his interest in the property was not proved. The first Court held that the alleged lease to the defendant s mother had not been proved. The Court of first instance found that the plaintiff was in exclusive possession. The lower Appellate Court found that Gafur had an 8 annas share and that Gafur had obtained his interest in the holding. On that the plaintiff obtained possession of 8-annas share along with the defendant. The present appeal is preferred against that decision. First of all, it is quite clear that the plaintiff has been found to he an 8-annas co-sharer of an undivided share in the property and he is entitled to each and every part of it, and the defendant who is found to be a mere trespasser is obviously not entitled to be in joint possession, along with the plaintiff in the 8-annas share. It might be that the suit being a suit for ejectment, the defendant s possession cannot be disturbed. It is quite clear that the plaintiff was put in possession and his possession will be the possession of Gafur or his heir, unless some act is done to exclude Gafur. The finding that has been made as to the possession of the plaintiff s lessor Abdul is not in very clear terms in the judgment of the lower Appellate Court. But it is quite clear that what the Judge means to find is that Abdul had been in exclusive possession from the time that Gafur went away and that Gafur had left the village for many years and had not been heard of. It is argued on that basis that the possession of Abdul would not be adverse to Gafur, unless there is some act to exclude Gafur. The act seems to be inconsistent with anything else except that the lessor of the plaintiff did mean to exclude his co-sharer and brother Gafur, who disappeared. There cannot be any doubt as regards the fact that Gafur was considered as dead or that he abandoned or left this small property and the plaintiff s lessor assumed to himself the sole ownership of the property and dealt with it without any reference to Gafur. I think, on the whole, that the facts warrant the finding that the title of Abdul had become adverse as against Gafur. If that is so, the case does not present any difficulty; because the plaintiff had his 3 annas plus the 8 annas of Gafur which he intended to have as his own and, as regards that, the plaintiff as representing Abdul is entitled to recover possession of the whole of the property. A case has been pointed out as regards the wider view involved and continually arising in this Court as to the value of the, possessory title in a suit for ejectment where the plaintiff is unable to prove that he has got a title to the property. The case that has been pointed out in the judgment in Manik Borai v. Bani Charan Mandal 10 Ind. Cas. 496 : C.L.J. 649 is a matter of considerable difficulty. That difficulty is not lessened by the fact that a contrary rule has been observed in this Court for a considerable number of years. It may be that in some cases, e. g., in Shama Charan Roy v. Surja Kanta 6 Ind. Cas. 806 : 15 C.W.N. 163 on the facts Chief Justice Jenkins came to the conclusion that the suit was, in fact, a suit for confirmation of possession. I doubt whether the present suit could, in any view, be treated as a suit for confirmation of possession. I think that the evidence in the case is sufficient to show that the plaintiff obtained a title by adverse possession against Gafur. That gets rid of the plea of jus tertii set up by the defendant by showing that the interest of Gafur had ceased to exist by virtue of the Statute of Limitation. In that view, I set aside the judgment of the learned Subordinate Judge and restore that of the Munsif. Smither, J.

(2.) I agree.