- (1.) THIS second appeal of defendant Kunda arises from the appellate judgment and decree of the Senior Civil Judge of Ganganagar, dated August 14, 1959 allowing the plaintiff's appeal and decreeing his suit for possession and injunction. I
(2.) THE dispute relates to a house situated in Kila No. 77 of village Kharsaj-war, tehsil Hanumangarh, of Ganganagar district. Plaintiff Kumbha Ram claimed that the bouse belonged to Moti and that he purchased it from his son Gopal under sale deed Ex. 1 dated July 1, 1931 for Rs. 100/- and that he continued to be in possession of the property since then. According to the plaintiff, the defendant dispossessed him some 2-1/2 years before the institution of the suit. THE plaintiff made an application to the Gram Panchayat of Sadul Shahar to seek his redress, but the Panchayat made an order on Sept. , 12, 1957 directing him to seek his remedy in a civil court of competent jurisdiction. He thereupon filed the present suit on October 5, 1957, for possession. THE defendant denied the alleged purchase of the house by the plaintiff. He pleaded that it was an open piece of land which was in his possession for a period of about 15 years and that his possession was lawful. Later, the defendant added the plea that sale deed Ex. 1 could not form the basis of the plaintiff's title because it had not been registered according to the law which was then in force in the former Bikaner State. Issues were framed on all these points of controversy. THE learned Munsiff of Hanumangarh held that even though the plaintiff had paid the penalty of Rs. 25/- in respect of the unregistered sale deed Ex. 1 under the provisions of the Bikaner State law, that did not make the document admissible in evidence because of the provisions of sec. 7 read with sec. 37 of the Bikaner State Registration Act, 1916. According to sec. 7 of that Act, the sale deed in question was compulsory registrable, while sec. 37 thereof provided that documents which were required to be registered by sec. 7 shall not affect any immovable property comprised therein and that no suit shall be entertained by any court on the basis thereof, unless such documents had been duly registered. For this reason, the learned Munsiff held that document Ex. 1 was not admissible in evidence and that its secondary evidence could also not be led by the plaintiff. He held that even though the plaintiff had succeeded in proving that he was in possession from 1931 onwards and that the defendant took over possession some 2-1/3 years ago, the plaintiff was not entitled to succeed in his claim for possession. Accordingly, the learned Munsiff dismissed the suit on March 18, 1959. On appeal, the learned Senior Civil Judge held that the document was admissible as evidence of a collateral nature, and decreed the suit by his impugned judgment. It is in these circumstances that this second appeal has arisen. It cannot be, and has not been, disputed before me that sale deed Ex. 1 is not admissible in evidence as the basis of the plaintiff's title. The question is whether the plaintiff can succeed on the strength of his possessory title inasmuch as his contention that he had been in possession of the suit property ever since its purchase on July 1, 1931, upto 2-1/3 years before the suit, i. e. upto 1954 or so, has been held to be proved by the trial court and that finding was not challenged in the court of first appeal. So far as the factual side is concerned, the reading of the statement of defendant Kunda shows that he clearly admitted having taken possession of the suit property some four years before the date of his statement. Even if this is accepted to be true, it would mean that the defendant was not in possession, on his own showing, upto about 1953. On the other hand, the plaintiff has led evidence to prove that he was in possession from 1931 onwards, so that his possession over a period of 23 years has been clearly established. As this exceeded the period of 12 years during which his possession could give rise to a title in his favour, it appears that the plaintiff could sustain his action on the basis of his possessory title which had ripened into full title and in respect of which he had shown, on the defendant's own admission, that he was in possession within 12 years from the date of the suit. However, Mr. Mohanlal has raised the question whether, in the absence of sale deed Ex. 1, the plaintiff, as a mere trespasser, could successfully complain against his dispossession by the defendant even if the defendant is held to be another trespasser. In other words, the learned counsel has raised the question whether the plaintiff could succeed on the basis of his possessory title. The point is quite easy to answer. As I have stated, the plaintiff has succeeded in proving that he was in possession from 1931 upto 1953 or 1954. It has also been proved that he acquired the possession peaceably, and not unlawfully, inasmuch as he claims to have been inducted in the premises by Gopal to whom the property once belonged. Further, it has been proved that the plaintiff's possession was not opposed over a period of almost 23 years. There is therefore no reason why he should not be entitled to possession against all except one claiming a better title, if at all. It has long been recognised, and is by now well established, that a person in peaceable possession of the land has as against every one but the true owner, an interest capable of being inherited, devised or conveyed. This was held as far back as 1865 in the well known case of Asher vs. Whitlock (1 ). Their Lordships of the Privy Council had an occasion to consider that case in Sundar vs. Parbati (2 ). In that case two widows took possession of the estate left by their husband, who was a Hindu. The husband had adopted a son to whom he bequeathed his estate by a will, but the adopted son died soon after the testator. After the adopted son's death, the widows obtained possession of the property and ultimately one of them sued the other for partition. The adoption was, to say the least, of doubtful validity, but leaving aside that and the other question of the validity of the willy their Lordships held that the fact of joint possession of the estate by the widows was sufficient for disposing of the suit in the plaintiff's favour. In that context their Lordships made the following observation - "their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing In these circumstances it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Premsukh or of Baldeo Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. " The point arose for further consideration by their Lordships of the Privy Council in Ismail Ariff vs. Mohamed Ghause (3 ). In that case the plaintiff sued for a declaration that he was the absolute owner of the land in the suit and for an injunction. The suit was resisted on the ground that the land was subject to the waqf created by the plaintiff's predecessor in title and that the defendant was a 'mutwali' thereof. The courts found in favour of the plaintiff's possession and that the defendant was not the 'mutwali'. Their Lordships of the Privy Council held that the plaintiff was entitled to a declaration as against the defendant that he was lawfully entitled to possession and the relief consequent thereon. They thought it unnecessary to decide the question of the validity of the waqf. The relevant observation of their Lordships is to the following effect: "the possession of the plaintiff was sufficient evidence of title as owner against the defendant, By Sec. 9 of the Specific Relief Act (Act I of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able, to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and injunction to restrain the wrongdoer from interfering with his possession. " I have therefore no doubt that the plaintiff is entitled to succeed on the basis of his possessory title which, in the present case, had ripened by lapse of time into full ownership. There is no merit in this appeal and it is dismissed with costs, although for reasons which are quite different from those adopted by the lower appellate court. . ;