Calcutta High Court
Gopal Chandra Maiti And Ors. vs Sm. Monmohini Dasi And Ors. on 6 April, 1927
Equivalent citations: AIR1928CAL118, AIR 1928 CALCUTTA 118
JUDGMENT Cuming, J.
1. The facts of the case out of which this appeal arises are as follows. There is a tract of land in the Sunder buns of which defendant 1 took a lease from the Government and in 1901 the plaintiff's vendor obtained a lease of some 100 bighas of this land from defendant 1. In 1906 the lease which had been granted to the plaintiff's vendor's lessor was cancelled by the Government and a fresh lease was granted on the 16th August 1907. The plaintiff purchased the lease of Kalachand in the year 1910. It was his case in the first Court that he was in possession of his land by cutting wood and exercising other acts of possession till he was dispossessed by defendants 2 and 3 in 1914. Defendants 4 and 5, the purchasers of the interests of defendants 2 and 3, contested the, suit. Their main ground was that the suit was barred by limitation both general and special and that the plaintiff had acquired no title to the land in suit by his purchase which was not a genuine transaction, that ever if the alleged purchase was a genuine one, the identity of the land in suit could not be established in the locale and that the plaintiff's vendor's title was extinguished when the lease to defendant 1 was cancelled in 1906.
2. A number of issues were framed and the first Court decided the case in favour of the plaintiff and decreed the suit with costs. On appeal to the District Court the learned District Judge held that the plaintiff's case was barred by limitation,, and hence he allowed the appeal and dismissed the suit.
3. The plaintiff has appealed to this Court. He has contended that the suit was not barred by limitation. The case which he-now seeks to make to avoid the bar of limitation is that the dispossession took place in 1908 when defendant 1 granted a lease to defendants 2 and 3. Up to that time he was in constructive possession, because he had title to the land and the land was virgin jungle and no one else was in possession. As there were no acts of possession exercised on the land possession is to be considered as following the title.
4. The main difficulty that I have in accepting this contention of the learned advocate for the appellant is that this was not the case which the appellant made in his plaint. His case in his plaint was that both he and his vendor were in actual possession. No case of constructive possession was suggested by him in his plaint and the defendants had not to meet any case of constructive possession. The case which they had to meet was that of actual possession and dispossession. The plaintiff was suing in ejectment and therefore he must prove his possession within 12 years of the date of the suit. As I have pointed out the case he made in his plaint was that he had been dispossessed in the year 1914. Having made in his plaint a definite case that he was in actual possession and that his vendor was also in actual possession of the land in suit, it is not open to him now in second appeal to turn round and to avoid the bar of limitation put forward an entirely different case based on constructive possession. To succeed in the case which he now puts forward he would have to prove that no one else exercised any act of possession over the land and that hence the possession must be held to follow the title: the defendants in that case would have this definite case to meet and their evidence would have been directed towards the meeting of such a case. As I have already said that was not the case made in the Court of first instance. As Mr. Justice Chatterjea points out in the case of Rakhal Chandra Ghose v. Durgadas Samanta A.I.R. 1922 Cal. 557 such a course is not open to the plaintiff where he puts forward a definite case of actual possession and dispossession : it is not open to him, when that case fails, to turn round and put forward a case of constructive possession which obviously depends upon entirely different facts which, if the defendants had to meet, they would, doubtless, have brought forward entirely different evidence. I hive therefore no reason to differ from the finding of the learned District Judge that the plaintiff's case is barred by limitation. I would therefore dismiss the appeal with costs. My learned brother is for allowing the appeal. The result is this appeal is dismissed with costs under Section 98, Civil P.C. B.B. Ghose, J.
5. I regret that I have to differ from my learned brother. The findings of fact arrived at by the Court of appeal below are these : defendant 1 obtained from the Government a lease of some land in the Sunderbuns. He gave a permanent lease of some 100 bighas out of this land to one Kalachand in 1901. This land has been found to have been virgin jungle. Subsequently there was an order by the Government for resumption of this land for non-performance of certain terms of the lease granted to defendant 1. The land was not actually resumed, but a renewed lease was granted to defendant 1 in 1907. The effect of this has been held by the Subordinate Judge not to have interfered with the rights of Kalachand under the permanent lease granted to him by defendant 1. This has not been controverted by the District Judge on appeal. The position, therefore, appears to be this : that Kalachand continued to remain a lessee under the permanent lease granted to him by defendant 1. Then in 1908 defendant 1 granted a lease to defendants 2 and 3 of a certain area of land which is said to have comprised the lands which had previously been demised to Kalachand. This piece of land was also described as virgin jungle. It has been found that defendants 2 and 3 cleared the jungle and brought the land under cultivation and then sold their interest to defendants 4 and 5. The plaintiff claims under a purchase from Kalachand in 1910 and sues for possession.
6. The plaintiff alleged that he had been dispossessed in 1914. The question is whether his title has been lost by dispossession in discontinuance of possession on the date of the suit, as the finding is that he has not proved dispossession in 1914 as alleged.
7. The suit was originally filed in the Court of the Munsif at Diamond Harbour on 10th June 1918, and the plaint was returned for presentation to the proper Court on a finding that the value of the property was in excess of the jurisdiction of the Munsif on 30th July 1919. The plaint was filed again in the Court of the Subordinate Judge on 6th August 1919. The important point, therefore, is whether the plaintiff has been dispossessed for more than 12 yea s prior to the date of the suit. On the finding, as I understand the decision of the learned Judge, the land was admittedly virgin forest at any rate up to 1908. Before 1908 nobody had claimed any title to the land in suit except the plaintiff's vendor Kalachand, and as it was virgin jungle up to 1908 when it was leased out to defendants 2 and 3 it cannot be said that the plaintiff's vendor was dispossessed by any person. Unless a person comes into possession of a piece of land ho ding adversely to the true owner it cannot be said that the true owner has been dispossessed. This principle seems to me to be obvious and may be deduced from the well known case of Trustees, Executors and Agency Co. Ltd. v. Short (1888) 13 A.C. 753, which has been followed in the case of Secretary of State v. Krishnamani Gupta (1902) 20 Cal. 518 and in other cases in this Court. This proposition may also find support in the cases of Kuthali Moothawar v. Peringati Kunharankutty A.I.R. 1922 P.C. 181 and Kumar Basant Roy v. Secretary of State A.I.R. 1917 P.C. 18. In my opinion, therefore, the plaintiffs were in the eye of law in the possession of the land in dispute and had not been dispossessed at any time prior to 1908 when the lease was granted by defendant I to defendants 2 and 3. The case of Rakhal Chandra Ghose v. Durgadas Samanta A.I.R. 1922 Cal. 557 in no way goes against that view. In that case evidence was given by both parties as regards actual acts of possession. What was observed at p. 736 of the report is this:
Now, where definite evidence of acts of possession is forthcoming there is no difference between the proof of possession in the case of jungle, waste or uncultivated lands and in that of cultivated lands. But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his possession within LA years, in the case of jungle or waste land, if he proves his title, there is a presumption in his favour where, having regard to the nature of the land, possession cannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that ho exercised acts of ownership upon the land and adduces evidence in support of such assertion ha cannot, where such evidence is disbelieved by the Court, turn round and rely upon any presumption.
8. Here there is no question of any such presumption upon which the plaintiff, his to rely. The question depends upon the facts found that there was no person before 1908 who exercised any act of possession on the land in dispute as against the plaintiff. When there was no one who intruded on the land before 1908, plaintiff's vendor's possession cannot be said to have been disturbed. I am therefore of opinion that the decision of the learned Judge should he reversed and the appeal allowed. But would order that the case should be sent back for the purpose of a local investigation in order to ascertain exactly the land which falls within the lease of the plaintiff. An application was made by the plaintiff before the Subordinate Judge for holding a local investigition1Bufc that was disallowed on what seems to be insufficient grounds as he held that the land could be ascertained upon oral evidence. On appeal the learned Judge was of opinion that the land could not be ascertained on oral evidence. The only course he then ought to have taken was either to order a local investigation himself or to direct the lower Court to make a local investigation and send him the result of such investigation in order to arrive at a decision on the question whether the land in the possession of defendants 1 and 2 fell within the lease of the plaintiff.
9. If the case had to be sent back I would also direct an enquiry, if the plaintiff succeeds in establishing the identity of the land in suit, as to the terms on which the plaintiff would be allowed a decree for possession hiving regard to the fact that apparently the defendants spent a considerable sum of money in order to improve the land. That matter has not been investigated in either of the Courts below. It is alleged that the question of compensation was not argued before the trial Court, because the defendants alleged that they would have their compensation from their landlord. This is also one of the questions which the Court would have to go into if the case went back for trial according to my view. On behalf of the respondents a question was raised that the document on which the plaintiff relies was not legally registered, But that question does not appear to hive been debated in the lower appellate Court. I need not discuss these questions as the appeal will be dismissed in accordance with the opinion of my learned brother.
JUDGMENT Rankin, C.J.
10. This is an appeal under Section 15, Letters Patent, arising from a difference of opinion between my learned brothers Mr. Justice Cuming and Mr. Justice B.B. Ghose.
11. The suit was brought in August 1919 and the question before us is a question of limitation under Article 142, Schedule 1, Limitation Act. The facts upon which the matter depends have reference to the grant of a reclamation lease of certain land hold under Government in the Sunderbuns. It appears that defendant 1 obtained from Government a head lease on 26th July 1900. By the terms of that lease he was under obligation to see that steps were taken to bring part of the jungle land comprised therein into cultivation upon certain terms and conditions which I need not now specifically refer to Defendant 1 gave a permanent lease of 100 bighas out of his land to one Kalachand in 1901. Kalachand, it appears, took no steps at all to reclaim the land, but it is matter which the Court of first instance decided and on which, in my judgment, there is no contrary finding by the District Judge, that that lease given to Kalachand was a reality, that is to say it was not a transaction which the parties thereto never intended to have any effect. It was not entered into merely for the purpose of some convenient or fraudulent design, but was a reality in the sense that one party paid his money and the other party intended to part with his rights under the lease. Kalachand having got his lease took no steps to reclaim the 100 bighas of jungle which he had in that way acquired and in that sense it may be said that the matter got no further than the paper transaction by which he took a title to the 100 bighas.
12. The next point is this that the Government being dissatisfied with the progress as regards reclamation took stops by which they called upon defendant 1 to give up the land or at least to take a new lease on more stringent conditions. In point of fact a new lease on more stringent conditions was granted to defendant 1, the actual land itself not being resumed or interfered with. This was in 1907.
13. The first question which arises is whether the cancellation of the original head lease and grant of the new lease put an end altogether to Kalaohand's title. If that be so it is an end of the suit. As Mr. Justice B.B. Ghose said:
The effect of this has been held be the Subordinate Judge not to have interfered with the rights of Kalachand under the permanent lease granted to him by defendant 1. This has not been controverted by the District Judge on appeal.
14. In my judgment it is necessary to take it for the purpose of the present case that the under lease granted to Kalachand did not come to an end by reason of the transaction between defendant 1 and the Government in 1907.
15. Kalachand having taken no steps to comply with the requirements either under the under lease or the head lease, defendant 1 gave leases to defendants 2 and 3 on 18th November 1908. On 2nd November 1917 defendant 3 and later on defendant 2 parted with their interest to defendants 4 and 5, but it was in 1908 that the title under which the defendants claim came first into existence. In 1911 Kalachand sold his interest to the plaintiff and the plaintiff brought his suit in August 1919
16. Now, the questions upon which the learned Judges have differed are really two. The first question is whether or not it is open to the plaintiff to say that he has shown in this case, first that he has a title to this land, and, secondly, that prior to 1908 no one had interfered with it by any acts of possession contrary to his right.
17. The second question is whether that contention, if the plaintiff makes it good, will enable him to escape the effect of Article 142, Schedule 1, Limitation Act. Mr. Justice Cuming took the view that as the plaintiff had come into Court with an allegation that Kalachand and his people had possession in the fullest sense of the word actively, clearing the land living on it, the plaintiff ought not to be allowed to make a case that up to 1908, when defendants 2 and 3 came on the land no one was in actual possession at all. He was also of opinion that that case would not be a good case under Article 142.
18. The main question is whether that contention if proved is a god answer to Article 14. In my opinion it is. In my opinion if the plaintiff shows that at a time when the right to possession of the land was with him it was jungle land, and no one else was in possession of it or interfering with it in any way contrary to his right, then he has done what is necessary to show that he was in the eye of the law in possession at the time. There is only one rule of law, but in its application there is some difference between land which is ready for use or cultivation, laid which is under water and incapable of any use, and land, such as jungle land. The plaintiff has always to show that he was in possession within 12 years of suit and it will not do for him to show that within 13 or 14 years be fore suit he was in possession of the land. But in the case of land which can not be availed of at all, it is clear law that the plaintiff may show that he was in possession 14 years before suit, that the land was flooded over with water, was in capable of any further use, and that his possession accordingly remained down to within 12 years of the suit because no disturbance of his possession can in these circumstances be supposed. So too with jungle land such as this. It is in my judge quite true to say that it is not enough for the plaintiff to prove his title it is quite true to say that it is not enough for him to show that 13 or 14 years before suit he was in possession. But he can make a case by showing as an additional fact either that the land in question was incapable of possession by anyone or that in fact no one was interfering with his right. It is possession, not user, that has to be shown.
19. In this case the defendants case is that when they took the land in November 1908, it was an unreclaimed jungle; that Kalachand was not in possession and no one was in possession. If it be true that the plaintiff's predecessor-in-title, Kalachand, had a real interest which was still subsisting, and with which no one was purporting to interfere, then it seems to me that for the period before 1908 the plaintiff has shown that Kalachand was in possession. I am of opinion that the contention which found favour with Mr. Justice B.B Ghose is correct, and that the cases cited in his judgment establish the proposition which he affirms. Another authority is the case of Suresh Chandra Mukherji v. Shiti Kanta Banerji . Both in the judgment of Mr. Justice Woodroffe and in the judgment of Mr. Justice B.B. Ghose the law is so laid down and it appears to be consistent with first principles laid down by the highest authority.
20. The next question is whether in the circumstances of this case the plaintiff ought to be allowed to say that this land before 1908 was in the actual occupation of no one. I may observe here that there is no case of abandonment raised or proved to the satisfaction of either of the Courts below. I need hardly say that for the purpose of inferring abandonment the nature and character of the land are extremely important. What is said is that as the plain iff came to Court with a case that Kalachand was clearing and living on this jungle before 1908, he ought not to be allowed now to fall back upon the proposition that nobody was living on the land at all. The chief authority for that contention on the part of the respondents is the decision in the case of Rakhal Chandra Ghose v. Durgadas Samanta A.I.R. 1922 Cal. 557. Now, whether the plaintiff, should be allowed, to change his case or to fall back upon an alternative case depends upon the circumstances, upon the points at issue and the way in which he has pleaded. This is not one of those cases where it is perfectly certain that either the plaintiff or the defendant was in active possession. If you get land on the border of two estates it may be perfectly certain that one or other of the two proprietors used it sometimes. If the plaintiff adduces evidence that he was in the habit of sing it, and defendants adduce evidence that it was always used by them and the plaintiff's evidence is disbelieved, it may be a strange thing to allow the plaintiff to fall back upon the supposition that nobody was using it at all contrary to the case of both the parties. But here the defendants own admissions have to be looked to and the surrounding cirstances have to be looked to. In allowing the plaintiff to proceed upon the basis that no one was in active possession of this land in 1908 one is doing no more than living the plaintiff the benefit of, the case which the defendants from the first made. I think that this is a matter in the Court's discretion, and that it would be wrong to shut the plaintiff out from putting his case on the established facts. It has been contended that the defendants might have proved that Government actually resumed the land in 1907, but if they had any such evidence it would have been adduced to disprove the plaintiff's title.
21. For these reasons it appears to me that this appeal should be allowed. I am en-entirely in agreement with the judgment of Mr. Justice B.B. Ghose in regard to two further matters. One is that the case should be sent back in order that proper steps may be taken to have a local, enquiry made to show whether this land can e identified or not. If it turns out that the plaintiff cannot succeed in proving that the defendants are in occupation of his land then no doubt the plaintiff's suit will fail. If, however, he succeeds in indentifying the lands with those in possession of defendants, then there should be an enquiry as to the terms upon which the plaintiff should be given a decree for possession. He bought this property in 1911, when the defendants were spending money on it. In considering this matter it is not necessary for us to lay down in advance any general propositions for the Court below, but it will be for that Court to consider whether the defendants are not entitled to compensation amounting to a full indemnity far the money which has been expended in improving the land and perhaps even in respect of interest thereon. The case must go back to the trial Court on these points. I think this appeal should be allowed with costs and that the appellant should have the costs of the second appeal in this Court. There should be no costs of the appeal before the District Judge. As regards the trial Court the costs of the whole suit will be dealt with by that Court after dealing with the case upon this remand. The decree of the trial Court is set aside and the case remanded as above mentioned.
Suhrawardi and Mujumdar, JJ.
22. concurred.