Patna High Court
Ram Nandan Nonia And Ors. vs Raj Kumar Singh And Ors. on 22 January, 1957
Equivalent citations: 1957(5)BLJR231, AIR 1957 PATNA 448
Author: Chief Justice
Bench: Chief Justice
JUDGMENT
1. Second Appeal No. 92 of 1950 is brought on behalf of defendant No. 15 against a judgment of the Additional Subordinate Judge of Sasaram, dated the 14th of December, 1949. Second Appeal No. 91 of 1950 is presented on behalf of defendants 1, 4 and 10 against the same judgment. In Second Appeal No. 91 of 1950 there is a cross-objection filed on behalf of the plaintiffs-respondents.
2. The suit was brought under the provisions of Order 1, Rule 8, Civil Procedure Code, by the plaintiffs in their representative capacity. The case of the plaintiffs was that plots Nos. .50, 91 and 156 are village chaurs, plots Nos. 34 and 150 were used as ahars and plots 139, 141 and 143 were used as grazing fields by the villagers. It was also claimed that on plot No. 143 there was a Brahmasthan and on plots 139 and 141 there was a Gobardhan Asthan. It was alleged that the defendants in conspiracy with each other had taken possession of these plots and cultivated crops thereon.
The plaintiffs also claimed that all the plots in dispute were recorded as gairmazrua-am in the survey record-of rights. Defendants 1, 4 and 10 contested the suit on the ground that the lands were not gairmazrua-am and that they were in possession of these lands for more than 12 years and that they had acquired title by adverse possession. Defendant No. 15 made a similar claim with regard to plots 139, 141 and 143. The trial Court found upon these rival contentions that defendants 1, 4 and 10 had established their title by adverse possession to portions of plots 34, 150 and 143.
The trial Court also found that defendant No. 15 had failed to prove adverse possession with regard to any portion of the disputed land. On appeal preferred by the plaintiffs, the lower appellate Court has found that defendants 1, 4 and 10 had proved adverse possession with regard to a portion of plot No. 143 and the Munsif was wrong in holding that defendants 1, 4 and 10 had proved adverse possession as regards any portion of plots 34 and 150. As regards defendant No. 15, the lower appellate Court took the view that no adverse possession had been proved with regard to any portion of plots 139, 141 and 143.
3. On behalf of the appellants in both the appeals the argument was advanced that Article 142 of the Limitation Act applies to the case and there was no finding by the lower Courts that the plaintiffs had proved possession and dispossession within 12 years of the institution of the suit. It was, therefore, argued that the appeals should be remanded to the lower appellate court for a finding whether the plaintiffs had established psssession within the period of 12 years prescribed by article 142 of the Limitation Act.
We do not accept this contention as correct. In- our opinion, Article 142 of the Limitation Act has no application to the case. Article 142 only applies to the case of a plaintiff 'who sues for possession of immoveable property' when the plaintiff was in possession of the property, but has been dispossessed or has discontinued the possession. In the present case the allegation of the plaintiffs is that the plots in dispute are gairmazrua-am plots and some of the disputed plots, like plots 50, 91 and 156 are village pathways. It was also alleged that plots 34 and 150 are used as ahars for irrigation of fields and plots 139, 141 arid 143 were used for grazing cattle.
It was also alleged that plots 139 and 141 were recorded as Gobardhan Asthan and plot No. 143 as Brahmasthan and the villagers assembled on these plots for worship of the deities. The plaintiffs prayed for a declaration of their right in the gairmazrua-am lands and for removal of the encroachment made by the defendants and for restoration of the lands to their original condition and also for an injunction restraining the defendants from committing any encroachment or nuisance. It was pleaded by the defendants in their written statement that they had been coming in possession of the lands for 15 to 25 years and had acquired right by adverse possession.
4. To a suit of this description we do not think that the provisions of Article 142 of the Limitation Act apply. We consider that the case falls within the provision of Section 23 of the limitation Act which deals with continuing breaches or wrongs and is in the following terms: "23. In the case of a continuing breach of contract and in the case of continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues."
Counsel on behalf of the appellants referred to the decision of this High Court in KuseshWar Jha v: Uma Kant Jha 22 Pat LT 1001; (AIR 1942 Pat 188) (A) where Article 142 of the Limitation Act was applied to a suit by the plaintiffs for ejectment and for recovery of possession from the defendants. But the principle of that decision is hot in point. That was a case where the defendant was in possession of a building on the disputed land for more than 12 years. It was held that there was complete ouster of the plaintiffs as soon as the building was erected and it was not a case of continuing wrong within the meaning of Section 23 of the Limitation Act.
It was held, on the, contrary, that it was a case of dispossession and the suit was for recovery of possession and ejectment of the defendant and, therefore, Article 142 of the Limitation) Act applied. We do not propose in this case to express any opinion as to the correctness of the law laid down by this Division Bench in the case reported in 22 Pat LT 1001: (AIR 1942 Pat 188) (A). Even assuming that the principle of law laid down in that case is correct, the material facts of the present case are different and the decision in the case reported in 22 Pat LT 1001: (AIR 1942 Pat 188) (A), has no application to the present case where a claim of adverse possession is made by the defendants not on the basis of erection of a building but on the basis, of cultivation of the disputed land every year. Such a distinction was made by Meredith, J. in an earlier case Bibhuti Narayan Singh v. Mahadev Asram, 22 Pat LT 46: (AIR 1940 Pat 449) (B) and the learned Judge pointed out that if the trespass or obstruction was continued by the wrong-doer in the sense that it was not abandoned where for instance the trespasser went on asserting acts of possession over the land by cultivation, then there was a case of continuing wrong and Section 23 of the Limitation Act gave rise continuously to fresh periods of Limitation. At page 58 (of Pat LT): (At p. 455 of AIR) Meredith, J. states:
"The position now becomes quite clear. Where the wrong amounts to dispossession of the plaintiff, then although it may be a continuing, wrong, the plaintiff cannot recover possession after twelve years, because under Section 28, Limitation Act, he himself has got no right left which he can enforce. Where the plaintiff is Government or is representing Government, as in the case of the Advocate General suing in respect of public land in the full sense, this period will be sixty years under Article 149, Limitation Act.
Where the plaintiff is a local authority suing in regard to a public road, the period will be thirty years under Article 146-A, Limitation Act. Where the obstruction does not amount to dispossession of the plaintiff, either because it is not on the plaintiff's land; or because the plaintiff himself has only a right of easement as in the case of rights of way of villagers originating in custom, then in such cases, even though the wrong be a continuing one, there would be no right of action after twenty years (or sixty years in the case of Government) where the defendant's wrong has itself ripened into an easement and this right of the defendant is one subsisting within two years next before the date of the suit"
As we have stated already, the present case falls within the principle of Section 23 of the Indian Limitation Act and the suit of the plaintiffs is not barred by Article 120 or by Article 142 or by Article 144 of the Limitation Act, Our view is supported by the decision of the Privy Council in Rajrup Kore v. Abul Hossein, ILR 6 Cal 394 (C) in which the defendants had obstructed the flow of water along a water channel belonging to the plaintiff. It was that the obstruction was a continuous act and the cause of action accrued de die in diem and Section 23 of the Limitation Act applied and the suit of the plaintiff was not barred.
There is another decision of the Privy Council in Hukum Chand v. Maharaj Bahadur Singh ILR 12 Pat 681: (AIR 1933 PC 193) (D) where the question at issue was whether alterations made by the Swetambaris in the character of the charans in certain shrines on Parasnath Hill were continuing wrongs within the meaning of Section 23 of the Limitation Act, It was held by the Privy Council that a suit for a declaration brought by Digambaris more than six years after the alterations was not barred as to that matter by Article 120 of the Limitation Act, be-cause the alterations were a continuing wrong within the meaning of Section 23 of that Act. At page 692 (of ILR Pat) : (at p. 197 of AIR) Sir John Wallis states:-
"As regards limitation the Subordinate Judge held on rather insufficient grounds that the acts complained of took place within six years of suit so that this part of the claim could not be barred by Article 120, but he also held that it could not be barred under that article as it was continuing wrong, as to which under Section 23 of the Limitation Act a fresh period begins to run at every moment of the day on which the wrong continues. The High Court on the other hand were of opinion that it was not a continuing wrong and that the claim was barred under Article 120.
In their Lordships' opinion the Subordinate Judge was right in holding that the acts complained of were a continuing wrong and consequently that this part of the claim is not barred. This question is covered by the decision of this Bord in ILR 6 Cal 394 (C), a case of diverting an artificial water course and - cutting off the water-supply of the plaintiff's lower lying lands."
There is also another decision of the Calcutta High Court in Nazimulla v. Wazidulla 29 Ind Cas 385 (E). It was held in that case that obstruction Which interfered with the right of way was in the nature of a continuing nuisance and Section 23 of the Limitation Act applied to such a case and that the case did not fall within the purview of Article 144 of the Limitation Act. There is a decision to the similar effect in Sarat Chandra v. Nerodo Chandra AIR 1935 Cal 405 (F) where the principle of the decision reported in ILR 6 Cal 394 (C) was applied. We accept the view expressed by this line of authorities and hold that the present case falls within the provisions of Section 23 of the Indian Limitation Act and the wrong complained of by the plaintiffs in the present case is a continuing wrong and Article 144 or Article 142 or Article 120 of the Limitation Act have no application. If that is the correct legal position, it follows that the suit of the plaintiffs must be decreed in its entirety and there must be a decree in favour of the plaintiffs even with regard to the portion of plot No. 143 with regard to which the lower appellate Court found that the defendants 1, 4 and 10 had proved adverse possession for more than 12 years.
5. Accordingly, we dismiss Second Appeals Nos. 91 and 92 of 1950 and we allow the cross-Objection filed by the plaintiffs-respondents in Second Appeal No. 91 of 1950 and we order that the suit of the plaintiffs should be decreed with regard to all the lands in suit in the terms mentioned in the plaint.
6. For the reason given above, we dismiss Second Appeals Nos. 91 and 92 of 1950 with costs and allow the cross-objection filed by the plaintiffs-respondents in Second, Appear No. 91 of 1950.