MOHAMMAD UMAR Vs. ABDUL GHANI

JUDGEMENT

(1.) This second appeal arises out of a suit for possession over a house upon the allegation that defendant 1, Mohammad Umar, was the tenant of the plaintiff Abdul Ghani and of defendant 2, Jagat Ram. The fact that Abdul Ghani and Mohammad Umar are related is not denied. Mohammad Umar is the grandson of Pir Bux and Abdul Ghani is the grandson of Nathwa. These two men Pir Bux and Nathwa were brothers. Nathwa had three sons Mohammad Ismail, Jangoo and Makhdum Bux. Abdul Ghani, the plaintiff, is the son of Mohammad Ismail. According to the Judge of the lower Appellate Court both parties were agreed that the house in suit and three other houses had belonged originally to the father of Nathwa and Pir Bux and that there was a partition by which the houses went to various members of the family. Abdul Ghani maintains that the house in suit went to Nathwa's branch and Mohammad Umar says that it went to the branch of Pir Bux. According to Abdul Ghani Mohammad Ismail, Jangoo and Makhdum Bux at one time had equal shares in the house, but the share of Makhdum Bux was transferred at a sale to Jagat Ram and the share of Jangoo passed first to Radhey Lal and then from Radhey Lal to Abdul Ghani himself so that the share of the plaintiff is two-thirds, and the share of the second defendant one-third. The plaintiff alleged that there had been a contract of tenancy between him and Mohammad Umar about seven or eight years before the suit was instituted, but the Courts below have both found that the evidence is unsatisfactory and that no tenancy is proved. This finding would have been sufficient in the first Court to entitle the learned-Munsif to dismiss the suit but he went into the further question whether the plaintiff had established his title and whether the defendant had established a claim to the house by prescriptive right if not otherwise. The learned Munsif came to the conclusion that the evidence of partition was unsatisfactory and that Abdul Ghani had failed to prove that he was the proprietor of this house. He also found that Mohammad Umar had been in possession of the house for over 20 years and that he had established his title by adverse possession if he had no other claim.

(2.) The learned Judge of the lower Appellate Court has agreed that there is no sufficient evidence of tenancy and that the defendant has been in possession of the house for over 20 years. He came to the conclusion however that the plaintiff had sufficiently established his title by the circumstances of the case supported by the decision in certain proceedings in the year 1925. In that year it appears that one Brij Behari had a decree against Mohammad Umar in execution of which he attached the house. Abdul Ghani, the plaintiff, then raised an objection that the house could not be attached because he and not Mohammad Umar was the owner of it. It was decided in that case that the attachment must be set aside on the ground that Abdul Ghani was the owner. The learned Judge of the lower Appellate Court has come to the conclusion that this decision is absolutely binding as between Abdul Ghani and Mohammad Umar and that for this reason the fact that Abdul Ghani is the owner of the house must be accepted. He has certainly given other reasons for thinking that the house must have passed to Abdul Ghani but they are not very strong and it certainly appears that he was very greatly influenced by this decision in the proceedings under Order 21, Rule 58, Civil P.C., in the execution case. In my judgment this decision's not binding at all as between Abdul Ghani and Mohammad Umar. In the first place there is nothing to show that Mohammad Umar had any notice of the objection taken by Abdul Ghani or that he ever raised any issue or took any part in the proceedings in the execution Court. There may be cases where it is to the interest of the judgment-debtor to oppose a claim that the property attached is not his property and, if he does oppose the claim and the matter is decided, the decision may be binding as between him and the claimant, but there are many cases where judgment-debtors have very little property against which decree, holders can proceed and are interested merely to save properties attached because, if those are safe, there is no other method by which the decree, holders can proceed against them. In such cases there may be collusion between them and the claimants. In the case before me it does not appear that Mohammad Umar had any reason to question the decision of the execution Court by way of instituting a suit under Order 21, Rule 63, Civil P.C. The attachment upon his property had been removed and his object had probably been attained. I consider that the learned Judge was not right in his view of the law and consequently his finding that the plaintiff had established his title to the property is vitiated. He relied upon the circumstances that Mohammad Umar admittedly had owned another house and that it was not probable that he would have obtained in a partition the house in suit as well. He has pointed out quite rightly that the alleged partition took place very many years ago and that the Court would have to be guided very largely by circumstances, but he has not mentioned the circumstance that Mohammad Umar had been in actual possession of the house for a period of 20 years before the institution of the suit and had paid no rent for it. I do not think that the finding of fact of the learned Judge can in these circum stances be binding on this Court.

(3.) It might have been advisable to remand the case for another finding upon this issue of proprietary title, but I think there is another reason why the appeal ought to be allowed. The learned Judge has found that Mohammad Umar has been in possession of this house for 20 years and has also found that there was no contract of tenancy between the parties as was alleged in the plaint. One would have thought in these circumstances that he would have held that the suit was at least barred by limitation. He has however said that Mohammad Umar has adduced no evidence whatsoever to prove that his possession over the house was adverse. The learned Judge considers that it is plain that he was permitted to live in the house by the appellant or Mohammad Ismail and the sons of Jangoo because of their relation, ship with him. He proceeded to hold that Mohammad Umar resided in the house as a licensee and the suit was not barred by time. It must be said at once that no plea was ever raised in the trial Court that there was any license or that any permission was given to Mohammad Umar by anybody to live in the house apart from the permission given under the alleged lease. The learned Judge has referred to no evidence whatsoever upon which he bases the finding that such permission was given. He has deduced the existence of permission from the circumstance of relationship and from the fact that Mohammad Umar did not adduce any evidence to prove that his possession over the house was adverse. It is not clear to me what kind of evidence the learned Judge expected Mohammad Umar to give. This is not a case of possession by one of a number of tenants in common. Mohammad Umar must have been in possession of the house either adversely or under some lease or license or permission of some kind. The only permission that was alleged by the plaintiff was the lease which is held not to have been proved. If there was no permission then the possession must have been adverse.