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Iqbal Husen And Ors. vs Nand Kishore And Ors.

High Court Of Judicature at Allahabad|18 February, 1902


JUDGMENT Knox and Blair, JJ.
1. The quarrel out of which the suit is said to have arisen, which led up to the present appeal, is thus stated in the pleadings. The plaintiffs, who are here respondents, say that the defendants began to pick lac off certain pipal trees. Upon the plaintiffs' servants interfering, the defendants, here appellants, maintained that the trees belonged to them, and the plaintiffs had no right, title or claim, whatsoever in the wall and the trees. The Subordinate Judge went into the whole matter in a very lengthy judgment. Part of the obscurity of the case is perhaps due to the very length of the judgment. His findings, however (he was the Court of first appeal), were to the effect that the wall belonged to the garden, which was admittedly the plaintiffs' property, that the trees were in the garden wall, and. that the defendants had not proved any act of adverse possession of any kind. It was unfortunate that the learned Subordinate Judge had not apparently the courage to take the further step and state boldly that upon his finding the wall belonged to the garden and the trees were in the garden wall. The plaintiffs' evidence which had established these facts covered and applied to the whole of the matter now in dispute. He obviously intended this when he went on to consider the question of adverse possession on the part of the defendants.
2. In second appeal after a remand a finding was undoubtedly put upon the record that the plaintiffs he not proved that they had done any act of specific possession within the twelve years next preceding the suit, and ground was at once opened for the present appeal. The Learned Counsel who appeared for the appellants had every right to insist that upon this finding the plaintiffs' suit must be held to have failed altogether. With considerable energy he pushed forward this finding, and supported it by reference to the ruling of their Lordship of the Privy Council in Asghar Reza v. Mehdi Hossein (1892-93) I.L.R. 20 Calc. 560 and Mohima Chunder Mozoomder v. Mohesh chunder Neoghi (1888) I.L.R. 16 Calc. 473. The learned Judge of this Court from whose judgment this appeal has been filed took, however, the broader and what we consider proper view of the whole case. He did not content himself by a bare adherence to this finding; but looking at the whole case found it to be one in which, while it might be that specific acts of possession on the. part of the plaintiffs could not be directly proved upon a particular portion or appendage of property, still the evidence which applied to the property in the whole of which the part in dispute was merely an appendage, must be held to govern the appendage also. He applied to the case the principle laid down by their Lordships of the Privy Council in Rajkumar Roy v. Gobind Chunder Roy (1891-92) I.L.R. 19 Calc. 660 at p. 677. The property in dispute in that case was a portion of the whole and a portion covered with water. Their Lordships held that "as the plaintiff's evidence is in accordance with, and is aided by, his title and previous possession, which is now made clear, and is not countervailed by anything of the slightest weight on the defendant's part" they were prepared to hold that the evidence, which clearly applied to the whole of the property, must be taken to apply to the laud in dispute. So here title and possession of the garden has been clearly found to be with the plaintiffs. It is not countervailed by any act of possession on the defendants' part over the wall and the trees in dispute. We hold that the evidence which applies to the garden must be taken to apply to the walls and the trees in dispute, which we consider to be merely appendages to and part of the garden. The result is that this appeal is dismissed with costs.
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Iqbal Husen And Ors. vs Nand Kishore And Ors.


High Court Of Judicature at Allahabad

18 February, 1902
  • Knox
  • Blair