Patna High Court
Mt. Koki And Ors. vs Chetwa Chamar And Ors. on 13 September, 1971
Equivalent citations: AIR1972PAT241, AIR 1972 PATNA 241
JUDGMENT Anwar Ahmad, J.
1. This appeal by the defendants arises out of a suit for declaration of title and recovery of possession in respect of plots Nos. 2768 and 2767, measuring 0.47 and 0.05 acres, respectively, under Khata No. 92 of village Jarmunney, P.S. Bagodar, in the District of Hazaribagh, and for mesne profits from the date of dispossession till the date of recovery of possession.
2. The case of the plaintiffs-respondents was that Khata No. 92 belonged to Tulo Barhi and Doman Barhi who were recorded as such in the Record of Rights and after their death, their heirs came to have possession over the same. As the recorded tenants were short of bullocks, they gave the land to the respondents for temporary cultivation, who came to be recorded in the Record-of-Rights as under-raiyats; but shortly thereafter, these under-raiyats gave up possession in favour of the recorded tenants who came in direct cultivating possession of the same. The further case of the respondents was that the suit land was settled by Doman and Budhan, as Kartas of the joint family, with the fathers of the respondents on taking a salami of Rs. 15/- and at an annual rental of Rs. 1/10/-. This was followed by a Hukumnama which was granted in token of the aforesaid settlement. The respondents thereafter constructed a residential house on a portion of the land in suit and cultivated the other portion appropriating its usufruct. In 1959, the appellants instigated certain persons to drive out the respondents from possession and asserted their own status on the basis of the under-raiyati entry in the Record-of-Rights. A proceeding under Section 144, Code of Criminal Procedure, cropped up which was later converted into a proceeding under Section 145, Code of Criminal Procedure. It was decided against the respondents by order of the Court dated the 28th July, 1962. The present suit was filed by the respondents ou the 23rd December, 1963.
3. The defence of the defendants-appellants was that the suit was not maintainable; it was barred by limitation and it also suffered from defect of parties. The giving up of possession by the then tenants was denied by the appellants. They also denied the settlement in favour of the fathers of the respondents. The receipt and the Hukumnama relied upon by the respondents were said to be all spurious and manufactured.
4. The Courts below have held that neither the respondents nor the appellants had title to the land in suit in the capacity of being under-raiyats, but they have decreed the suit on the finding that the respondents were in possession of the disputed plots from 1936 onwards up to 1962 when the dispute as to possession cropped up between the parties. They have also found that the respondents were in possession up to the 28th July, 1962, when they were dispossessed on account of the judgment passed in the proceeding under Section 145, Code of Criminal Procedure.
5. Mr. Braj Kishore Prasad II in a brief but suttle argument has contended, on behalf of the appellants, that the Courts below have erred in the eyes of law in decreeing the suit of the respondents in spite of the finding that the title of the respondents was not proved. According to learned counsel, if a suit has to be brought for mere possession, it has to follow the provisions of Section 9 of the Specific Relief Act (old) which provides a period of six months for this purpose from the date of dispossession. According to learned counsel, as the respondents failed to prove their title, their suit for declaration of title and confirmation of possession could not be decreed in the eyes of law. In support of his submission, learned counsel relied upon the cases of Lachman v. Shambhu Narain, (1911) ILR 33 All 174 and Ram Chandra Sil v. Ramanmani Dasi, 20 Cal WN 773 = (AIR 1917 Cal 469). Both these cases are Full Bench decisions of the Allahabad and Calcutta High Courts, respectively. But, so far as this Court is concerned, the matter is settled by a series of decisions that in a suit for declaration of title and recovery of possession, even if the plaintiff fails to prove his title but proves his prior possession and that the defendant in the suit is a trespasser, the plaintiff will be given a decree for recovery of possession as against the defendant who is a trespasser pure and simple. In Sahodra Kuer v. Gobardhan Tiwari, AIR 1917 Pat 546 it was laid down by Chamier, C. J. and Sharfuddin, J. that a suit for possession can be brought beyond six months and Section 9 of the Specific Relief Act was no bar to the maintainability of the suit. Their Lordships also held that a person having possession over a piece of land even though short of statutory period is entitled to recover possession from a trespasser who has come in possession by ousting him from possession. Similar view was expressed by another Bench of this Court in Akal Ahir v. Baijnath Das, AIR 1924 Pat 709 and it was laid down that if a person was in possession of the land even without title thereto he could not be successfully turned out by another person who also had no title and if such a thing should happen the person first in possession was entitled to be put again in possession even if he failed to prove that he had a title to the land. Dawson Miller, C. J., who agreed to the main judgment which was delivered by Mullick, J., laid down the proposition of law in the following guiding lines:
"There is abundant authority for the proposition that if a person is in possession of land even without title thereto he cannot be successfully turned out by another person who also had no title, and if such a thing should happen the person first in possession is entitled to be put again in possession even if he should fail to prove that he had a title to the land."
The next case on the point is Bodha Ganderi v. Ashloke Singh, AIR 1927 Pat 1. To this judgment also Sir Dawson Miller. C. J. was a party and his Lordship laid down the proposition of law in the following words:
"As between two persons who are unable to make out a valid title one is in possession and has been in possession for several years. He is suddenly dispossessed by another who has no better title than the person whom he dispossesses, in fact he has no title at all. In the circumstances it seems to me that the plaintiff is entitled to be restored to possession of this tree. The defendants had no right whatever to dispossess him and, if they do, whatever may be his title he clearly can seek the aid of the Court to be put back in such possession as he had, before being dispossessed by those who had no title."
To the similar effect is the decision in Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222. The matter was again agitated before this Court in Govind Dutta v. Jagnarain Dutta, AIR 1952 Pat 314 and it was laid down that possession is good title against all but the true owner and a person in peaceable possession of land has, as against every one but the true owner, an interest capable of being inherited, devised or conveyed.
6. The aforesaid discussion makes it clear that the courts below were right in coming to the conclusion that in spite of the respondents' failure to prove their title, as they had remained in possession for more than twelve years, they were entitled to get a decree for possession as against the appellants who had come in possession by evicting them on the 28th July, 1962, and had no title in them. There is no merit in this appeal. It is accordingly dismissed.
B.D. Singh, J.
7. I agree.