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1911 DIGILAW 182 (ALL)

Bansi Dhar v. Lachmi Narain

1911-05-16

KNOX

body1911
JUDGMENT : KNOX, J. This appeal arises out of a suit brought by one Lachhmi Narain, minor, under the guardianship of Musammat Ram Piari. On turning to the plaint I find that the plaintiff finds the defendants in possession at the time he brings his suit. He alleges that that possession was wrongful possession, and he prays that the defendant may be ejected and he, the plaintiff, may be put in absolute possession. There are some subsidiary prayers for damages, but with those we are not concerned. The suit has gone through various courts. It eventually reached this Court and was sent back to the Subordinate Judge of Bareilly, for decision upon the merits. It is common ground that a piece of land was part of the property held by one Badri Prasad. In order to understand the position which the plaintiff and the defendants occupy, for they are both descended from a common ancestor, one Shitab Rai, the genealogical tree given below will be helpful:— 2. It has been established that upon Badri Prasad's death he left surviving his brother, Beni Prasad and his son, Bhagwati Prasad. Of these two, Bhagwati Prasad died first, leaving him surviving his widows, Dulari and Saraswati. Under these circumstances and bearing in mind that Sita Ram had separated from Beni Prasad and Badri Prasad, the property left by Bhagwati Prasad, would devolve upon Beni Prasad. Beni Prasad and Bhagwati Prasad died in the year 1886, and we would expect to find that upon Beni Prasad's death, Musammat Munna succeeded to the property. 3. It does not appear that she ever died. But the case here is confused. All that has been found is that somewhere in 1903, Lachhmi Narain got into possession of the property. He apparently held it for two years, and then it got into the possession of Ram Chandar, the present defendant, in whose possession it still is. The Subordinate Judge of Bareilly had before him this point, at least this can be gathered from what he says in the beginning of the judgment: “The defence was that by a private partition this land fell to the share of two brothers, Badri Prasad and Beni Prasad, and the defendant has preferential right to it. The learned Subordinate Judge in his judgment sets out that the rightful heir to this land was Musammat Munna and after her, her son, the defendant. The learned Subordinate Judge in his judgment sets out that the rightful heir to this land was Musammat Munna and after her, her son, the defendant. But the wrongful persons in possession of it were Musammats Saraswati and Dulari, widows of Bhagwat, and they remained in possession up to their death which took place in 1902 or 1903. Thus they had acquired by adverse possession a title to this land, and the defendant's title was extinguished. The defendants cannot revive that title by forcible possession of it taken after the lapse of 12 years. The defendants took possession of it in 1905.” But the learned Subordinate Judge appears to have overlooked the fact that Ram Chandar being a reversioner, has title to this property as a successor to Beni Prasad and not as a successor to Musammat Munna. He had only a contingent interest as long as Musammat Munna was alive. There is evidence to show that at any rate, up to the 28th of June, 1898, Musammat Munna was still alive and the suit is really a suit brought by Lachmi Narain, who can only show a two years' possession without any further title against Ram Chandar, who is in possession and can show title derived from Beni Prasad. Ram Chandar is in possession and is entitled to hold possession against any other person, who cannot show a better title in himself. This being the case, this appeal must succeed. The appeal is decreed and the suit of the plaintiffs is dismissed with costs in all courts.