NANNHEY KHAN Vs. MTGOMTI

JUDGEMENT

(1.) This appeal arises out of a suit for partition and possession instituted by the plaintiff-respondent, Mt. Gomti. The appellant Nannhey Khan was defendant 5 in the suit. We are concerned with one item of property only in this appeal. It belonged originally to one Abdul Razzak and through the process of inheritance Qaviul Islam, defendant 4, became entitled to 35 sehams out of 96 sehams in this property. These 35 sehams were acquired by the plaintiff-respondent, Mt. Gomti on 15 September 1925. At the time of the suit the disputed property was in actual physical possession of the appellant Nannhey Khan. Mt. Gomti, therefore, impleaded Nannhey Khan also as a defendant to the suit along with other descendants of Abdul Razzak who had inherited the remaining 61 sehams. There was a triangular contest in the suit in this way that the plaintiff asserted that defendants 1 to 3, namely, Habibul Razzak, Hifzul Ruzzak and Moinul Islam, were in possession over the disputed property as co-sharers and that Nannhey Khan was in occupation of the property as a tenant of these three persons. Defendants 1 to 3, on the other hand, pleaded that they were in adverse proprietary possession against the vendor of the plaintiff. Appellant Nannhey Khan pleaded possession adverse to all of them and asserted his ownership on the basis of adverse possession extending to over 12 years. The case which has lasted now for more than 10 years, has a chequered history. It was dismissed by the Munsif on 31 March 1939. An appeal against the decree was dismissed on 27 November 1946. On a second appeal to this Court the case was remanded under Order 41, Rule 23, Civil P.C., for a re-hearing of the appeal. As a consequence of the re- hearing, the lower appellate Court reversed the decree of the trial Court or 23rd February 19J3, and decreed the plain-tiff's suit with regard to the property in dispute now. This appeal has been filed by defendant Nannhey Khan against the decree of the lower appellate Court passed on a re-hearing on 23 February 1943.

(2.) Nannhey Khan again asserted his title by adverse possession in this appeal and it was contended on his behalf that the finding of the lower appellate Court on the question of adverse possession was vitiated by errors of law. By its order dated 30 August 1946, this Court remitted the following two issues to the lower appellate Court for findings: (1) (a) Did the possession of Nannhey Khan amount to adverse possession? or (b) was it merely permissive? (2) Was he in such possession for twelve years? The lower appellate Court has now found that the appellant had been in possession of the disputed property for over 50 years and that his possession was permissive. This finding has been attacked by the learned Counsel for the appellant by means of objections filed under Order 41,R. 26, Civil P.C.

(3.) A preliminary objection has been raised by the learned Counsel for the appellant to the effect that the issues having been remitted by Hon ble Sinha J., I have no jurisdiction to hear this appeal. The objection is based upon Rule 5 of chap. 6, High Court Rules, which runs as follow;;; A case which is part-heard shall, unless it be other-wise ordered by a Judge or Judges, be placed first after miscellaneous cases in the Day's List on the day when the Judge or Judges who hag or have partly heard such case next sits or sit for the disposal of that class of business. Every part-heard case entered in the Day's list shall, unless the Bench otherwise orders, be proceeded with whether an advocate or attorney in the case is present or not.