PRATAP CHANDRA SARMA AND ANOTHER Vs. BHABA NATH SARMA
HIGH COURT OF GAUHATI
Pratap Chandra Sarma And Another
Bhaba Nath Sarma
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Thadani, C.J. -
(1.) I have had the advantage of reading the judgment of my learned brother, but I regret I am unable to hold that the plaintiff -respondent has acquired title by reason of adverse possession for the statutory period.
(2.) THE arrangement described by the plaintiff in the plaint makes no reference to his possession of the estate in his own right as against the auction purchaser. Manifestly the arrangement was a secret arrangement made between the plaintiff and the auction -purchaser, by which the plaintiff sought to hoodwink his creditors, that is to say, if any of his creditors had attempted to attach the estate, the plaintiff would have set up the title of the auction -purchaser or his successor -in -title and persuaded him to file claim proceedings on the strength of the purchase. It was not until 1940, some 7 years after the auction -sale in October, 1983 that the plaintiff satisfied all his creditors. Until 1940, therefore, the plaintiff was not in a position to assert his hostile title against anybody, much less against the auction -purchaser whom he would not have hesitated to use in order to thwart his creditors. This promiscuous arrangement made with the auction purchaser in order to defeat his creditors can scarcely be countenanced by a Court of Law to enable a party thereto to sustain his title by adverse possession so long as his possession can be traced to this promiscuous arrangement The plaintiffs possession of the estate on and after the date of the auction -sale being in pursuance of this promiscuous arrangement, it can only be regarded as a kind of permissive possession derived from the auction -purchaser, and until such permissive possession is displaced by hostile possession openly asserted for the statutory period, I do not think the question of adverse possession can properly arise.
(3.) THE question of the rights of the parties in a case where A alleges that immovable property was purchased by B with A's money, as in the present case, was considered in the judgment of Patanjali Sastri J. in Moolji Jaitha & Co., v. K.S. & W. Mills Co., A.I.R. 1960 F.C. June 83 at 99 Pr. 59. His Lordship observed;
The privy Council, however, have pointed out that the law in India recognises no distinction between legal and equitable estates in property and that there is only one owner of property and that is the trustee, the right of the beneficiary being in a proper case to call upon the trustee to convey to him.
(Vide Chhatra Kumari v. Mohan Bikram,, 58 Ind. App. 279).;
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