KAPOOR Vs. NANHI

JUDGEMENT

(1.) PLAINTIFF -respondent 1 brought the present suit for possession of occupancy field No. 18/2 in mauza Parasiya (Seoni) under the following circumstances: The family tree is as follows: Chamru (died more than 20 years ago) | ------------------------------------------- | | Jethu=Mt. Gyana Gana=Mt. Sagani (pre-deceased | (Deft. 1) | Chamru) | Mt. Nanhi | (Plff.) Ganesha | ---------------------- | | | Kapoor Saroop Chetu (deft. 2) (deft. 3) (deft. 4)

(2.) IT is not disputed now that Chamru was the ordinary tenant of the field. His son Jethu pre-deceased him, while Chamru himself died 20 years ago. There are findings of fact by both the lower Courts, which I see no reason or room for disturbing, that Ganesha, grand-son of Chamru, and Gana, Chamru's son, held the field jointly. Apparently, the Subordinate Judge came to the conclusion that, after Gana's death, the field became the sole property of Ganesha and his sons. It is difficult to understand how he arrived at this conclusion, and the Additional District Judge, who tried the appeal, was undoubtedly correct in rejecting it. What is absolutely clear, however, is that after Gana's death, Mt. Sagani held charge of the field and dealt with it as her own tenancy. She made a registered gift thereof in favour of the present plaintiff (respondent 1) and for some four years the landlord recognized the latter as tenant and accepted rent from her and she was admittedly alone in possession thereof. The view taken by the Judge of the first Court as to what subsequently occurred was obviously wrong. He admitted that the present defendants-appellants could not recover their share in the tenancy by a suit under the Tenancy Act, as that was barred; but as they took forcible possession in Kuar 1924, he held that the position was saved in their favour. This is needless to say an entirely wrong view of the law. As Mr. Justice Markby pointed out in Brindabun Chunder Roy v. Tarachand Bundopadhya 20 W.R. 114 it is an accepted doctrine in our Courts that, if a party who has been 12 years out of possession, and whose suit is, therefore, barred, should again get into possession, he is not (to use an English phrase) remitted to his old title; our Courts adopting, as pointed out by Sir Lawrence Peel in Sibchunder Doss v. Sibkissen Bonnerjee 1 Boulnois 70, the English rule that there is no remitter to a right for which the party had no remedy by action at all.

(3.) I fully agree with the judgment and decree of the Additional District Judge and dismiss the appeal accordingly. The appellants must bear the respondents' costs. Costs in the lower Courts as already ordered.