Patna High Court
Bhagwan Das Sharma vs Gaya Sah And Ors. on 12 April, 1966
Equivalent citations: AIR1967PAT254, 1967CRILJ1042, AIR 1967 PATNA 254
JUDGMENT U.N. Sinha, J.
1. This appeal has been filed by defendant No. 1. It arises out of a suit instituted by the plaintiffs for declaration of their title to some land and for recovery of possession thereof and for mesne profits as against defendant No. 1 (defendant first set), and in the alternative, for recovery of Rs. 3,500 with interest and damages, from defendants second to fourth sets.
2. The facts shortly stated, are as follows: It was alleged that the property in dispute had originally belonged to one Ganesh Chamar, and after sale for arrears of rent, it was purchased by Mosst Brajraj Kuer, who came in possession. According to the plaintiff's. Mosst. Brajraj Kuer had settled the disputed land with Bakshi Mangal Prasad, who, in his turn sold the same to defendant No. 3 a firm known as Anant Ram Gajadhar Prasad. This sale was effected in 1943. It was alleged that in 1956 the firm sold the disputed land to the plaintiffs by two sale deeds in the Farzi name of defendant No. 7. The sale deeds had been executed by defendant No. 2 (defendant second set) under a power-of-attorney given by defendant No. 4 (defendant fourth set), who was a Mukhtar-e-Am on behalf of the members of the firm According to the plaintiffs, defendant No. 4 was authorised to appoint a substitute to deal with the properties of the firm and thus defendant No. 2 had executed the two sale deeds.
It was alleged that the plaintiffs were put in possession. Then, a dispute arose in the very year and a proceeding under Section 144 of the Code of Criminal Procedure was commenced in June, 1956. The proceeding was, however, dropped on the 12th September, 1956. But, soon thereafter, a second proceeding under Section 144 of the Code was started on the 29th September, Ultimately, there was a proceeding under Section 145 of the Code of Criminal Procedure, and by order dated the 15th June, 1957, this case was decided in favour of defendant No. 1, There was an alternative claim made by the plaintiffs to the effect that they were entitled to gel Rs. 3,500 from defendants Nos. 2, 3 and 4, who are the defendants second third and fourth parties. Hence this suit was instituted.
3. The suit was contested by defendant No. 1, according to whom, the plaintiffs had neither title to the disputed properties nor had they got possession as alleged. According to this defendant, the disputed lands had been settled with him in 1949, by the firm, which had by then decided to wind up its business. It was contended that since 1949 defendant No. 1 was in possession. The plaintiffs' sale deeds were said to be fabricated documents and it was contended that defendant No. 4 had no power on behalf of the partners of the firm to appoint any substitute for him and, therefore, the power-of-attorney excuted by defendant No. 1 in favour of defendant No. 7 was invalid. Hence it was alleged that defendant No. 2 could not have validly executed the sale deeds upon which the plaintiffs relied.
4. On trial, both the courts before decreed the plaintiffs suit. It was held by the courts below that neither the plaintiffs nor defendant No. 1 had succeeded in establishing their title to the disputed lands, but the plaintiffs had succeeded on the ground that they had been in possession before the initiation of the proceeding under Section 145 of the Code of Criminal Procedure, whereas the contesting defendent bad failed to prove his case of possession since 1949 Defendant No. 1 came to this Court in Second Appeal No. 983 of 1961, and by judgment dated 28th November 1962, the appeal was allowed and was remanded for re-hearing. If had been argued on behalf of defendant No. 1 in that appeal, that when the plaintiffs had failed to establish their title, the suit should have been dismissed on that ground alone. The decree passed in favour of the plaintiffs on the ground of their prior possession was challenged as an erroneous decree. But, for the reasons given in the judgment of this Court in that second appeal this contention was rejected as untenable. It was held on the earlier authorities of this Court, mentioned in that judgment that, where both the parties had failed to establish their title, the plaintiffs could have succeeded on the point of their previous possession. Upon the question of the plaintiffs' possession, however. It was held that the judgment of the court of appeal below was not in accordance with law, inasmuch as the oral evidence adduced by the parties had not been dealt with properly. This Court also indicated that the final court of fact should have token into consideration the effect of a judgment given under Section 145 of the Code of Criminal Procedure in favour of a particular party. In remanding the case, this Court stated that it would be open to the court of appeal below to allow the parties to give additional evidence, if they so liked, and the court would also allow substitution in place of Purnamal Jaipuria, if such substitution appeared to the court to be just and proper. After remand, the court of appeal below has by its judgment and decree dated the 30th July, 1963, dismissed the appeal and has affirmed the decree of the trial court. It may be mentioned that additional evidence was not adduced in the court of appeal below. On the fact of the death of Puranmal Jaipuria, it has been held that he was not a necessary party to the suit and that at best he was only a proper party, and, therefore, his death, without substitution of his heirs and legal representatives, has not affected the appeal. The substantial conclusions arrived at by the court of appeal below after remand are, that, the plaintiffs had obtained valid title to the disputed properly by their two purchases made on the 17th February, 1956, by Exhibits 6 and 6 (1)). It has further been held that the plaintiffs have been able to prove that they had come in possession after their purchases and the contesting defendant's case of title and possession has been disbelieved.
5. Learned counsel for the appellant has contended that the conclusions of the Court of appeal below to the effect that the defendants were not in possession of the disputed land and that the plaintiffs were in possession are not in accordance with law and the directions of this Court given in Second Appeal No. 983 of 1961 have been disregarded. It is argued that upon the directions given by this court, it was incumbent upon the court of appeal below to consider the evidence of P. Ws. 4, 5 and 8 specifically, before the plaintiffs' case of possession based on oral evidence could have been accepted. It is argued that five defendants' witnesses were examined on their case of possession and no reference has been made to the evidence of these witnesses by the court of appeal below. Thus, according to the learned counsel for the appellant, the judgment after remand is again vitiated. Having heard learned counsel for the parties on these contentions, and having perused the judgment under appeal. I am of the opinion that it is not possible to hold that the judgment is vitiated on the contentions raised by learned counsel for the appellant. No doubt, the learned Judge on appeal has made specific reference to the evidence of P.W. 4 only, in paragraph 14 of the judgment, but that cannot lead to the inference that he was unmindful of the other oral evidence adduced by the plaintiffs. It may be noticed that this Court stated in the earlier judgment that of the other two witnesses examined by the plaintiffs, P.W. 5 was plaintiff No. 1 and P.W. 8 was his son. Therefore, having dealt with the plaintiffs' case extensively, upon the documentary evidence adduced by them, reference to the evidence of P W 4, who was not a party to the suit, was enough for testing the evidence adduced by the plaintiffs. According to this witness, he was a neighbour, and the disputed land was at a distance of 100 steps from his house. Consideration of the evidence given by plaintiff No. 1 and his son was implicit in the consideration of the plaintiffs' case and in the consideration of the documentary evidence adduced on their behalf. The consideration of the evidence given by a neighbour as to possession was necessary for testing the other evidence on record. Therefore, I am not in a position to hold that absence of any specific reference to the oral evidence given by plaintiff No. 1 and his son can be said to vitiate the judgment under consideration. Similarly, absence of any specific reference to the defendants' witnesses cannot necessarily imply that the court below was unmindful of the evidence adduced by the defendants. At a number of places in the judgment the learned Judge on appeal has referred to the defendants' case of possession and in my opinion, it must be taken that this reference was in the context, of the evidence given by the defendants' witnesses in Court. For instance, in paragraph 13 of the judgment, the learned Judge has staled that if the defendants story of Sikmi or full-fledged tenancy is not accepted, then the defendants' entire case of possession suffers from a serious defect. This reference to the defendants' case of possession must mean the evidence, given by the defendants' witnesses in Court. In paragraph 15 of the judgment, two rent receipts marked as Exhibits B and B/1 filed by the defendants have been considered and in dealing with these documents, it has been held that the principal defendant could never have been really in physical possession of the suit land. It is clear, therefore, that the court of appeal below was not unmindful of the defendants' oral evidence that the contesting defendant was in physical possession of the disputed land as a result of his alleged settlement in 1949. In the same paragraph the court of appeal below has stated that the existence of 39 guava trees, two Sarifa trees, one hut and a partially dug well on the suit land, comes in open and direct conflict with the case of possession of the principal defendant, whose case has been of his having all along been in possession of the suit land by cultivation. Therefore, this is clearly a consideration of the evidence led in Court about the physical possession of the disputed land. When the Court states that the existence of those trees etc was "incompatible and incongruous with the case of cultivating possession over the entire lands as said by the principal defendant", the conclusion is surely after noticing the oral evidence given by the defendants' witnesses. The presumption attaching to an order under Section 145 of the Code of Criminal Procedure, mentioned in the earlier judgment of this Court, has also been elaborately discussed by the court of appeal below now. Therefore, the only conclusion that can be arrived at is that the final court of fact has now come to its conclusions on a review of the entire oral and documentary evidence on record, keeping in view the specific direction given by this Court in its order of remand.
6. Learned counsel for the appellant has relied upon three unreported decisions of this Court, which are Civil Revision No. 150 of 1964, D/- 23-12-1964 (Pat), Second Appeal No. 611 of 1961, D/- 18-8-1962 (Pat) and Second Appeal No. 377 of 1957, D/- 17-9-1959 (Pat), for his argument that in the absence of specific reference to the evidence of all the witnesses adduced by both the parties, the judgment of the court of appeal below ought to be set aside and the case remanded once again. The principle laid down in the three decisions, mentioned above, is unexceptionable; but, I have indicated above, that the judgment of the court of appeal below gives a clear indication of the fact that the Court has come to its conclusions after a scrutiny of the evidence on record, oral and documentary. Therefore, the judgment cannot be set aside on the contentions raised by learned counsel for the appellant in this context.
7. It has next been urged upon the authority of a decision of the Supreme Court, in the case of Brahma Nand Puri v. Mathra Puri, AIR 1965 SC 1506, that the court of appeal below has erroneously accepted the plaintiffs' title, and if the plaintiffs' title is not accepted, then this suit should have been dismissed even if the plaintiffs had proved their possession subsequent to their alleged purchases and even if the defendant No. I's case of possession by virtue of his settlement in 1944 is disbelieved. The contention raised by learned counsel for the appellant is that the court of appeal below has erroneously held that the plaintiffs' title has been proved by Exhibits 6 and 6 (b) It is sufficient to state that even if the findings of the court of appeal below are taken to be in favour of the plaintiffs only with respect to their possession and against defendant No. 1 with respect to his possession, this suit would succeed on the authorities mentioned by this Court in the earlier second appeal and on the conclusions arrived at by this court at that stage When it was held that if both the plaintiffs and the defendant failed to establish their title to the suit land, the plaintiffs could succeed if they could prove their possession prior to the initiation of the case under Section 145 of the Code of Criminal Procedure, that finding operates as res judicata at this stage. Moreover, the decision of their Lordships of the Supreme Court in Brahma Nand Puri's case, was given on an entirely different set of facts. The appellant of that case had claimed the properties as the successor of the last Mohanth and he had claimed to be in possession of the properties as the successor. His adversary had claimed to be in possession, asserting his title to such possession by being a Chela who had been duly appointed. An issue was raised in a previous suit as to whether it was the plaintiff or the defendant who was in possession and it was found that the defendant was in possession. The suit was for a mere declaration and injunction and it was held to be not maintainable and was dismissed. Thereafter the appellant brought the suit out of which the appeal arose before their Lordships for a decree for possession of the properties belonging to the Dera, It was in that context that their Lordships of the Supreme Court held that the plaintiff's suit being one for ejectment, he is to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title, the plaintiff's suit must fail notwithstanding that the defendant in possession has no title to the properties. It is manifest, therefore, that the second suit was not based on possession and dispossession. Therefore, there is no substance in the contention raised by learned counsel for the appellants, that, the view taken by this Court in the earlier second appeal based on 29 Pat LT 17: (AIR 1947 Pat 444) and AIR 1952 Pat 316 stands overruled by the decision of the Supreme Court of India.
8. In the result, it must be held that the appeal is without any merit and it must fail.
The appeal is, therefore, dismissed with costs payable to plaintiffs-respondents Nos. 1, 2. 3 and 6.