Mushtaq Ahmad, J.
1. This is a defendants' appeal in a suit for partition of a 49/72 sihams share in a house. The following pedigree will elucidate the facts:
Khairat Ali = Hafiz-un-Nigsa = name unknown
| | Defendant 1.
Hashmi Begum Himayat Ali,
= Wajid Ali, Defendant 5.
Mt. Jhagro, Mt. Hashmat-un-
Defendant 2, Nisa,
2. Khairat Ali in the above pedigree died in 1920, after which his widow Hafiz-un-Nisa brought a Suit No. 278 of 1921 of the Court of Munsif, Muzaffarnagar, for recovery of her dower debt against her own son and daughter, Himayat Ali and Hashmi Begum. On 9th August 1921, a compromise was effected in the suit that Hafiz-un-Nisa and Hashmi Begum would be deemed to be the absolute owners of the entire house in dispute, while the entire zamindari property left by Khairat Ali would be deemed to be owned by Himayat Ali only. It was further provided that within a month of the date of the compromise the two ladies would apply to the revenue Court to enter the name of Himayat Ali alone over the said zamindari property and that Himayat Ali, in his turn, would execute a sale-deed in respect of his share in the house in favour of those ladies. There was a further clause in the compromise that in case of failure of the two ladies in this behalf, their suit for dower would stand dismissed and that in case of failure by Himayat Ali to carry out his part of the agreement, the suit would stand decreed. In compliance with the above settlement, Hafiz-un-Nisa and Hashmi Begum did apply to the revenue Court within a month of the compromise that the name of Himayat Ali alone might be entered against the entire zamindari property left by Khairat Ali. Himayat Ali, on the other hand, did not carry out his part of the agreement within the time stipulated under the compromise. However, he did, after the expiry of that period, execute a sale-deed on 24th October 1921, in favour of the ladies regarding his share in the house in dispute. On this, on 28th November 1921, the ladies made an application to the revenue Court that their previous application for the mutation of the name of Himayat Ali against the zamindari property might be struck off. On the death of Khairat Ali, Himayat Ali had inherited a 14/24th, Hashmi Begum a 7/24th and Hafiz-un-Nisa a 3/21th share in the house in dispute. In disregard of this devolution, Himayat Ali on 19th February 1923, however, executed a sale-deed in respect of the entire house to .Shanker Lal, father of the plaintiff-respondent. Not being able to get possession over the house, which had all along been in the occupation of Hafiz-un-Nisa and Hashmi Begum, Shanker Lal sold the house to one Mt. Lado, and this lady then brought a Suit No. 3175 of 1925 of the Court of Munsif, Muzaffarnagar, against Shanker Lal and Hafiz-un-Nisa for possession over the house, and, in the alternative, for refund of the sale-price by Shanker Lal. Mt. Lado, in para. 2 of her plaint, had alleged that Mt. Hafiz-un-Nisa had been in unlawful possession of the house without any right. Both the defendants, Shanker Lal and Hafiz-un-Nisa, contested the suit, the former pleading that he had in fact handed over possession over the house to Mt. Lado, and the latter that she, along with her daughter Hashmi Begum, had been in proprietary possession over the house, and that neither the plaintiff, Mt. Lado, nor her predecessor-in-title had ever been in possession thereof, nor had the plaintiff any right to claim possession over the house as against her. The learned Munsif, while holding that Shanker Lal had not proved that the sale-deed executed by Himayat Ali in his favour was for valuable consideration, dismissed the suit of Mt, Lado for possession, but decreed the claim for refund of the purchase price against Shanker : Lal on 6th April 1926. This decree was affirmed in appeal by the learned District Judge of Meerut on 25th June 1926, and the latter decree became final.
3. Shanker Lal then filed Suit No. 30 of 1936 against Hafiz-un-Nisa and the heirs of Hashmi Begum, who had since died, for partition of a 14/24th share in the. house. This means that Shanker Lal in this suit did not claim the share which Himayat Ali his vendor, might have inherited from his sister Hashmi Begum. On 31st. March 1937, this suit was dismissed for default, with costs. Thereafter the present suit was; filed by Mangal Sen, son of Shanker Lal for the relief I have already mentioned. The defendants contested the suit principally on three grounds : (1) that the suit was barred by Order 9, Rule 9, Civii P.C., on account of the dismissal of Shanker Lal's Suit No. 30 of 1936; (2) that it was barred by Section 11, Civil P.C., on account of the decree in Suit No. 3175 of 1925; and (3) that the defendants having acquired title by adverse possession for over 12 years, it was also barred by limitation.
4. The trial Court, while rejecting the first two defences, accepted the last, and, holding that, the suit was barred by limitation, dismissed it. The lower appellate Court, while agreeing with the trial Court that the suit was not barred by Order 9, Rule 9, but holding that it was barred under Order 2, Rule 2, Civil P.C., in regard to the share that, Himayat Ali might have inherited from his Bister Hashmi Begum on the latter's death, decreed the claim for partition of a 14/24th share only in the house.
5. The entire argument before me was confined to the question of adverse possession in this case, learned Counsel for the respondents,. not challenging the finding of the lower appellate Court with regard to the bar of Order 2, Rule 2 Civil P.C. in respect of a portion of the claim;
6. The contention of the learned Counsel for the defendants-appellants was that the trial Court had rightly appreciated the position and held that the defendants had been in adverse-possession of the entire house for more than 12 years and acquired an absolute title by virtue, of that possession. He urged that the lower appellate Court having, in agreement with the trial Court, accepted the position that Hafiz-un-Nisa and Hashmi Begum had along been in sole possession, of the house, and Shanker Lal or his vendee Mt. Lado having never had possession over it even for a day, that Court ought to have held the suit as barred by time. It may be recalled that Himayat Ali had, in the first instance, sold his share in the house to the two ladies, though after the expiry of the period stipulated under the compromise of 9th August 1921, and that, inspite of that transfer, he had, later on, again sold the entire house to Shanker Lal on 19th February 1923. It is true that, the sale-deed executed by Himayat Ali in favour of the ladies having been executed beyond the period fixed by the compromise, the ladies had applied to the revenue Court intimating their intention to withdraw their earlier application for the mutation of the name of Himayat Ali against the zamindari property. The fact remains, however, that a sale-deed in their favour had been executed by Himayat Ali in respect of his share which he had every right to execute and that the same was never subsequently avoided by Himayat Ali. It is also a fact that, so far as the actual possession is concerned, the ladies alone have been found concurrently by the Courts below to have held it throughout. Shanker Lal's vendee, Mt. Lado, clearly alleged in her plaint of the suit of 1925 that Hafiz-un-Nisa had been in adverse possession of the entire house, and to the same effect was the assertion made by Hafiz-un-Nissa herself in her defence to that suit. As also mentioned, Shanker Lal in that suit had pleaded that he bad actually delivered possession over the house of Mt. Lado, but this defence was not found to be true, and, indeed, the trial Court held that the sale-deed executed by Himayat Ali in favour of Shanker Lal was without consideration, the decree of that Court being affirmed in appeal by the District Judge, Meerut.
7. The only circumstance that could put the present claim within time was that Hafiz-un-Nisa or Hashmi Begum could be regarded to be a co-sharer in the house with Shanker Lal, in which case, the ladies' possession would be in law the possession of Shanker Lal himself. Indeed, this was the test which was rightly adopted before me by the learned Counsel for the parties in their arguments.
8. So far as Hafiz-un-Nisa is concerned, the matter presents no difficulty at all. She had clearly pleaded in the suit of 1925 that she, along with her daughter Hashmi Begum, had been in proprietary possession of the house to the exclusion of Mt. Lado and her predecessors-in-title. Hafrz-un-Nisa thus openly disowned the title of Shanker Lal and claimed absolute possession in herself and her daughter Hashmi Begum. The present suit' having been brought more than 12 years after that assertion, it could not be held to be within time at least as against Hafiz-un-Nisa or, after her death during the pendency of the suit, against her heirs among the defendants.
9. The question arises really in a serious form with regard to Hashmi Begum, and it is whether she could be deemed to have been in possession of the house as a cosharer of Shanker Lal. It would be appreciated that Shanker Lal himself never claimed either Hafiz-un-Nisa or Hashmi Begum as his cosharer. He had actually taken a sale of the entire house from Himayat Ali treating himself to be the sole owner of it, and by implication, denying the title of everyone else. Shanker Lal, in his turn, then' sold the entire house to Mt. Lado, and in the suit filed by the latter had pleaded that he had put Mt. Lado in possession of the entire house. All this means that Shanker Lal throughout set up an absolute title in the house to the exclusion of Hafiz-un-Nisa and Hashmi Begum. In this setting of facts, it cannot be conceived that Shanker Lal had at any time acknowledged the title of Hafiz-un-Nisa or Hashmi Begum as his cosharer or that either of those two ladies had been in possession of the house as such.
10. As argued by the learned Counsel for the appellants, the position may be judged from a converse case. Supposing Shanker Lal had, after purchasing the entire house from Himayat Ali, actually entered into possession of it, could he have then admitted Hafiz-un-Nissa or Hashmi Begum as his cosharer? Having professed to have purchased the entire house from Himayat Ali and got possession of the house as such, he could not in that case treat himself only as a co-sharer with some one else and acknowledge his possession to be also on behalf of that other party. If, instead, Shanker Lal did not get possession, as the findings of the Courts below are, but passed on the trouble to a third person, Mt. Lado, and the latter also failed to obtain possession on the finding that Shanker Lal had himself never had possession of it or delivered it to his purchaser, Mt. Lado, it could not be conceived that the party actually in possession was in possession also on behalf of Shanker Lal and as his cosharer.
11. Learned Counsel for the appellants relied on the case of Thiagaraja Pillai v. Appavoo Pillai A.I.R. (18) 1931 Mad. 22, where it was held that:
Where a purchaser of property held in common by several tenants-in common purchases it from one of such tenants-in-common openly and with the knowledge of other co-tenants, must be taken to have repudiated the title of the others, there and then, and possession becomes adverse from the time of his purchase.
Shanker Lal, therefore, having purchased the entire house from Himayat Ali in disregard of the title of Himayat Ali's mother and sister, Hafiz-un-Nisa and Hashmi Begum respectively, he could not, in any sense, be regarded as admitting those ladies to be his co-sharers and admitting also that they had been in possession of the house as his cosharers, I am, therefore, of opinion that the trial Court had come to a right conclusion in holding that the ladies had acquired title by adverse possession and that the suit was barred by time. That finding should not, in my judgment, have been disturbed by the lower appellate Court.
12. Learned Counsel for the respondents argued that the finding of the lower appellate Court that Hafiz-un-Nisa and Hashmi Begum had not acquired title by adverse possession was a finding of fact and could not be disturbed in second appeal. He relied on the Full Bench cases of Bhagwana v. Ch. Gulab Kuer A.I.R. (29) 1942 ALL. 221 F.B. and Incha Ram v. Bande Ali Khan 33 ALL. 757, in support of this contention. In both these rulings the question was whether certain persons in occupation of an abadi site had acquired title by adverse possession as against the zamindar. Allsop J. while delivering the judgment in the earlier decision, remarked that:
We are satisfied that the case should have been decided upon the pleadings of the plaintiffs and the finding of fact of the Courts below that the plaintiffs have failed to establish that the whole of the residents of the village had acquired a proprietary title in the whole of the land concludes the case.
13. It is this passage which the learned Counsel for the respondents has emphasised in the main. There is no doubt that a finding that a certain party failed to establish that he had acquired a proprietary title in a certain land is, so far as it goes, a finding of fact. This does not, however, mean as it would appear from the rulings I shall later on cite, that, even if the finding is based on a legally wrong inference from proved facts, it must be held to be binding in second appeal. So far as the other Full Bench decision, referred to above, is concerned, Richard C.J. observed that:
I think that the finding of Mr. Gauri Shanker is a finding that the defendants and their predecessors-in-title have acquired a title by adverse possession. I think we ought to accept this finding unless we think that the finding is a finding which could not legally be arrived, at upon the evidence.
14. The test, therefore, of the finding being binding or not in second appeal is whether it was legally arrived at, which is the same thing as to say whether the inference drawn from the facts found was legally correct.
15. The true position undoubtedly is that a finding with regard to a party's adverse possession is a finding on a mixed question of fact and law. It is a question of fact, no doubt, whether such a party has been actually in possession of the property for a certain period, but it is essentially a question of law, as to whether, on the evidence on the record, or, on the facts admitted between the parties, such possession] could be regarded to be adverse. Their Lord-ships of the Privy Council in Ch. Satgur Prasad v. Raj Kishore Lal A.I.R. (6) 1919 P.C. 60, while determining the question whether the possession of a Hindu lady in that case could be held to be adverse, made the following significant observation:
It Is with reluctance that their Lordships differ from the concurrent opinions of the two Courts below on this point; but it is one in reality of legal inference from documents and not a finding of fact, and their Lordships are unable to draw the inferences made by the Subordinate Judge and followed by the High Court.
This Court in Subah Lal v. Fateh Mohammed A.I.R. (19) 1932 ALL. 393 and in Alopi v. Gajadhar Prasad A.I.R. (18) 1931 ALL. 323, clearly held that the question of adverse possession was a mixed question of fact and law. The principle applied in a matter like this, as emphasised in these and other cases, was that the question of an inference to be drawn from proved or admitted facts was essentially a question of law. In particular, the position was further affirmed in the cases of Subhaddra Kuer v. Ram Sewak A.I.R. (21) 1934 ALL. 288, Firm Ladhamal Bishandas v. Nadar A.I.R. (23) 1936 Lah. 742 and Bhabani Prosanna v. Manindra Chandra Boy A.I.R. (22) 1985 Cal. 460. In Berojullah Sarhar v. Ayatullah Akand A.I.R. (25) 1938 Cal. 117, it was held that where the Courts below had each taken a different view of the question of adverse possession raised by a party, it was pre-eminently a case for the High Court in second appeal to reconsider the matter afresh and come to its own finding,
16. In view of all the above circumstances and the case-law mentioned above, I have come to the conclusion that the defendants had clearly made out their title by adverse possession over the house as against the plaintiff, and that the lower appellate Court misled itself by reversing the finding of the trial Court to that effect.
17. I accordingly allow the appeal, set aside the decree of the lower appellate Court, restore the decree of the trial Court, and dismiss the suit with costs throughout.
18. Leave to appeal under the Letters Patent is refused.