Patna High Court
Srinath Singh And Anr. vs Kali Bhawani Prasad And Anr. on 24 August, 1971
Equivalent citations: AIR1972PAT138, AIR 1972 PATNA 138, ILR (1972) 51 PAT 429
JUDGMENT B.N. Jha, J.
1. There is dispute in this case that the land bearing plot No. 102 of khata No. 3 of village Badgawan having an area of 2.78 acres appertained to the estate of the defendants commonly known as Palganj estate which vested in the State of Bihar on July 13, 1953. The plaintiffs-respondents claimed the aforesaid land by virtue of settlement by Rang Bahadur Prasad Singh, grand-father of defendant No, 1 under a hukumnama dated November 26, 1931 in the name of plaintiff No. 2 at an annual rental of Rs. 4 besides cess. Village Badgawan where the suit land lies was in thika at that time which was to end on 30th Falgun 1359 Fs. Hence the plaintiffs were to take possession of the land in question after the expiry of the thika i. e., from 1st Chait. 1359 Fs. The land was being cultivated by the thikadar through bataidars. The plaintiffs took possession of the land and began to get it cultivated through bataidars. They continued in possession for some time but subsequently, there was a proceeding under Section 144 of the Code of Criminal Procedure in respect of the suit land and, thereafter, defendant No. 2 took forcible possession of the suit land on 30th Magh, Fs. corresponding to February 26, 1955. Hence the plaintiffs brought the suit for declaration that the plaintiffs have raiyati right in respect of the disputed land and for confirmation of their possession, in the alternative, for recovery of possession besides mesne profits past and future.
2. The suit was resisted by the defendants. They asserted that the hukumnama in question was a forged and fabricated document and as it was not registered, no valid settlement of the land in favour of plaintiff No. 2 was made. They alleged that the plaintiffs never came in possession of the land and the whole story of possession and dispossession was false. According to the defence case, the defendants, as landlords, were in possession of the suit land throughout.
3. The trial court disbelieved the case of the plaintiffs and dismissed the suit On appeal, however, the suit was decreed. The defendants filed a second appeal in the High Court which was allowed and the case was remanded to the lower appellate court for fresh hearing- After remand the lower appellate court came to the conclusion that the hukumnama was genuine document and a valid raiyati settlement was created by the document in favour of the plaintiffs. Hence the appeal was allowed and the plaintiffs suit was decreed. Hence the defendants have come up in second appeal.
4. The second appeal was heard by a Division Bench of this Court presided over by Mr. Justice Tarkeshwar Nath and myself. It was urged by learned counsel for the appellants that there could not be a valid raiyati settlement without the hukumnama being registered. This position was virtually accepted by learned counsel for the respondents but he contended that the plaintiffs were in possession of the suit land. The defendants who were ex-landlords were not in possession of the suit land at the time of the vesting of the estate. Therefore, they had no right to dispossess the plaintiffs. Hence, on the basis of previous possession the plaintiffs were entitled to a decree. Since the lower appellate court had not recorded a clear finding as to when the plaintiffs were dispossessed either by defendant No. 1 or defendant No. 2 or by both and also as to whether the defendants were in possession of the suit land on the date of the vesting of the estate, we, therefore, remanded the case for recording clear findings on the aforesaid points on the materials already on the record. After remand the lower appellate court has come to the conclusion that the plaintiffs were dispossessed by defendant No. 2 on February 26. 1955 as alleged by them and the defendants were not in possession of the disputed land on the date of vesting i. e., on July 13, 1953.
5. At the hearing of the appeal we were not addressed on the question of the validity of the settlement by the hukumnama which was not a registered one. Since the hukumnama was not a registered document, no valid lease could be created in favour of the plaintiffs to be effective after a period of twenty years. Therefore the plaintiffs can have no raiyati interest in the suit land and the plaintiffs' suit for declaration that they had acquired raiyati interest in respect of the disputed land, therefore, must fail. But the matter does not end here.
6. Learned Counsel for the plaintiffs-respondents contended that assuming that the plaintiffs were trespassers in respect of the suit land but the defendants who had no right in the suit land in 1955 after the vesting of the estate were also trespassers and they had no right to dispossess the plaintiffs when they were rightly or wrongly continuing in possession of the suit land. He submitted that though the plaintiffs' possession (sic) but nevertheless, they were entitled to succeed on, the strength of their previous possession though they had no title in the suit land. Only the rightful owner of the suit land could resist the claim of the plaintiffs and the defendants who were not the rightful owners had no right to interfere with their possessions. A number of authorities on this point were cited at the Bar. In my opinion, the contention of learned counsel for the respondents is well founded and must be accepted.
7. Under the Specific Belief Act, two kinds of suits for possession of immovable property are contemplated. Section 8 of the Act provides for a suit for possession if a person is entitled to it. If a person is entitled to a property and if he is out of possession, he is to bring a suit under the general law the procedure of which is given in the Code of Civil Procedure and appeal is also provided against the decision of the court- The person who has got better title is entitled to succeed in an action for possession provided his remedy is not otherwise barred. Under Section 9 of the Specific Relief Act a summary suit for possession is provided for. Here if the suit is brought within six months of the date of dispossession, the person so dispossessed is entitled to be restored to possession irrespective of the fact whether he has got title or not. Law recognises that possession is the prima facie proof of title. Even if the defendant in that action has got title, that title cannot avail him because he has got no right to take the law in his own hand and dispossess the person in possession.
The decision of the court in such a suit is final and no appeal or any review of such order or decree is permissible. In substance, the law allows a person in possession of an immovable property to remain in possession unless he is evicted from it through process of law by a better title. This principle has been extended to suits for possession even if the suit is brought after six months and within the statutory period of twelve years where the person is dispossessed by a person who has got no title irrespective of the fact that the person in possession so dispossessed had got absolutely no title. His possession can be only resisted by a person who is the true owner of the property. In an action for ejectment if the defendant proves better title, the suit for possession will fail. But if both the plaintiff and the defendant have got no title to the suit land i. e., even if both are trespassers on the suit land, the plaintiff who is a prior trespasser is entitled to possession against the subsequent trespasser who has dispossessed the former on the strength of his previous possession. If the person in possession continues in possession for more than twelve years, he acquires a title commonly known as possessory title- Possession is the notice of title of the person to the whole world under Section 3 of the Transfer of Property Act. Therefore, the previous possession of a person in respect of the property has got to be protected in courts of law against the whole world except the true owner unless the remedy of the true owner is barred by limitation. These propositions are well-settled on the principle and on the authorities of different courts some of which I would like to deal here.
8. The matter came for consideration, before the judicial Committee, in the case of Ismail Ariff v. Mahomed Ghous (1897) ILR 20 Cal 834 = 20 Ind App 99 (PC). In that case the plaintiff brought suit for a declaration that the plaintiff was owner of the premises and the defendant had no right to interfere with the possession of the plaintiff and for injunction restraining the defendant from interfering with his possession. The High Court found that the plaintiff was coming on in possession for past six years without title and the defendant had no right to interfere with his possession. But, in the opinion of the High Court, when the plaintiff had failed to prove his title, no declaration of title of the plaintiff could be made and the suit must fail on that ground. There was an appeal to the Judicial Committee by the plaintiff and the suit of the plaintiff was decreed on the strength of his prior possession. Sir R. Cough who spoke for the Committee observed as follows:--
"The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 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 on 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 wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession,"
In Sahodra Kuer v. Gobardhan Tewari, (2 Pat LJ 280) = (AIR 1917 Pat 546) the plaintiff's suit on the basis of prior possession for a period short of statutory period of twelve years as against the trespasser was decreed by the High Court. Chamier, C. J., observed as follows:--
"Both on principle and on authority it seems to me to be clear that the appellants are entitled on the strength of their previous possession peaceably enjoyed to a decree for possession against the respondents who are mere trespassers."
Similar matter came for consideration in Ranjit Singh v. Johri Singh (11 Pat LT 34) = (AIR 1929 Pat 601) Das, J., very lucidly laid down the law on this point as follows:--
"The plaintiff brings a suit in ejectment. It is quite true that he can only succeed by the strength of his own title. He satisfied the Court of facts that he was in possession of the disputed property before he was forcibly dispossessed. Section 110 assumes that he might be taken to be the owner till the contrary is established. It follows therefore that if the case attracts the operation of Section 110. Evidence Act, the onus must be upon the defendants to show that the plaintiff who has proved that he was in possession before his forcible dispossession is not entitled to the disputed property."
In Chaturbhuj Singh v. Sarada Charan Guha, (ILR 11 Pat 701) = (AIR 1933 Pat 6) it was held that, "in an action of ejectment a plaintiff may be entitled to succeed on the strength of his prior possession only and it is open to the defendant to set up the right of a third party unless he claims under it and makes good that claim".
In Subodh Gopal Bose v. Province of Bihar, (AIR 1950 Pat 222) it was held that.
"as an abstract proposition of law, we do not think that there is any doubt that possession is a good title against all but the true owner, and entitled the possessor to maintain an action in ejectment against any person other than the true owner who dispossesses him."
In Govind Dutta v. Jagnarain Dutta, (AIR 1952 Pat 314) the following passage from Pollock and Wright on Possession (page 95) which lays down the law on the point succinctly was quoted with approval:--
"It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrong-doers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to be in possession when the time of limitation expires. Reflection however, shows this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title; William is the possessor and apparent owner of a house; in that house he dies; we will suppose him to the intestate. John, wrongly supposing himself to be entitled as the heir of William enters and occupies the house. Peter is really William's heir, but ignorant of the facts; in course of time having obtained information and advice, he sues John. It turns out that William had disseized Giles the true owner, by mere encroachment or in some other way, and would have had no answer to an action brought by Giles or his assigns to recover the land. But since William's death the period of limitation has expired and the right of Giles is extinguished, can John use this as a defence against Peter ? No, for the statute has nothing to say, for better or worse, about the person in actual possession, or the relative worth of the qualified right to possess which may have arisen while time was running against the true owner. It says that Giles, and those who have or would have had his estate, shall not from henceforth sue any one. It does not say that Peter shall not sue John. Whether some one else has a higher title or not. Peter has a better title than John, as he would have had though the true owner's claim were still enforceable. In the language of the modern authorities, possession is good title nothing less 'against' all but the true owner."
9. A distinction between different kinds of suits for ejectment has been clearly made out by the Supreme Court in a recent decision in Nair Service Society Ltd. v. K.C. Alexander, (AIR 1968 SC 1165). It was held in that case.
"A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the provisions of the statute of limitation applicable to the case, his right is for over extinguished and the possessory owner acquires an absolute title. In the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised."
In view of the aforesaid decisions it Is evident that the plaintiffs who have proved their prior possession are entitled to get decree for recovery of possession as against the defendants who have no title in the suit lands. It may be that after the vesting of the estate the title in the suit land vested in the State but the matter is between the plaintiffs on the one hand and the State on the other. If the State would have come forward to resist the title and possession of the plaintiffs, the plaintiffs would not have been entitled to the restoration of possession. But so far the defendants are concerned, they have got no right to interfere with the possession of the plaintiffs.
10. Learned counsel for the appellants then contended that according to their own case the plaintiffs were not in actual possession but they were getting batai rent from the tenants. He urged that for the purposes of adverse possession there must be actual physical possession of the person asserting it. Learned counsel for the respondents submitted that possession of a tenant is the possession of the landlord even if the landlord is trespasser and he realises rents and profits from the tenant, he will be deemed to be in actual possession in law. In support of his contention he relied on the decisions in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 and in Secy. of State for India v. Krishnamoni Gupta, (ILR 29 Cal 518 (PC)). In the former case it was held that, "what is usually called possession In this country is not only actual or khas possession, but includes the receipt of the rents and profits".
In the case of Secretary of State for India, referred to above, the Mozumdars were the proprietors of mauza Mowkuri which was situated on the northern bank of river Pudma. The Government were proprietors of some other villages on the southern bank of the river. The land of village Mowkuri by shifting of the bed of the river re-appeared on the southern side of the river and the Government took possession of the land as a part of their own villages. The Mozumdars took Ijara from the Government on a reserved jama. Though the Government were trespassers the possession of the Mozumdars as Ijaradars was held to be the possession of the Government on the principle that possession of the tenant is in law the possession of the landlord or the superior proprietor. These two cases support the contention of learned counsel for the appellants and, therefore, even if the plaintiffs were in possession through bataidars and they were trespassers, they would be regarded to be in actual possession of the suit land. But if the land is not capable of possession and submerges under water a trespasser cannot claim to be in constructive possession of the suit land. In that case, the true owner would be deemed to be in constructive possession of the land.
11. On a careful consideration of the facts, circumstances and the law on the point, I am of the opinion that the decree for possession passed by the court of appeal below in favour of the plaintiffs has got to be maintained but, on different ground.
12. The plaintiffs in this case have succeeded on the ground of their previous possession. This point was never raised in the two courts below. Their suit for declaration of title as raiyats has failed. The litigation has been unnecessarily prolonged. In these circumstances, it is just and proper that the plaintiffs should be deprived of all claims for mesne profits down to this, date. In this connection a reference may be made to the case of Merla Ramanna v. Nallaparaju, (AIR 1956 SC 87).
13. In the result, the appeal succeeds in part. The plaintiffs' suit for declaration of title as raiyats in respect of the suit land and their claim for mesne profits are hereby dismissed. The decree for possession in respect of the suit land in favour of the plaintiff is maintained, though on a different ground. In the circumstances of the case, parties will bear their own costs throughout.
B.D. Singh, J.
14. I agree.