Patna High Court
Govind Yadav And Ors. vs Deoki Devi And Ors. on 3 April, 1979
Equivalent citations: AIR1980PAT113, AIR 1980 PATNA 113, 1980 BLJR 261 (1980) BLJ 276, (1980) BLJ 276
JUDGMENT Shivanugrah Narain, J.
1. This appeal by defendants 1 and 2 arises out of a judgment and decree of the 4th Additional District Judge, Monghyr by which the learned Additional District Judge has reversed the judgment and decree of the trial Court and decreed the suit brought by the respondents in this Court for declaration of title to, and recovery of possession over 7.5 acres equal to 8 bighas, 11 kathas 17 dhurs of land comprised in survey Plot No. 491 of Khata No. 676 of village Hathband in the District of Monghyr fully described in Schedule III to the plaint of the suit out of which this appeal arises.
2. The aforesaid Survey Plot No. 491 is a very large plot of land and admittedly 20 bighas, 17 khatas 19 dhurs specified in Schedule II to the plaint out of the aforesaid Survey Plot No. 491 was sold to the original plaintiff No. 1 Keshav Yadav under a registered sale deed dated 30-5-1940 executed by one Gopi Nath Bose who had purchased Khata No. 676 at an auction sale in execution of a decree for arrears of rent obtained against the recorded tenants. Keshav Yadav was mutated in the landlord's 'sherista' and admittedly was in possession of the aforesaid 20 bighas 17 khatas and 19 dhurs of land till 1936 in which year the Court of Wards which was incharge of the Bahadurpur Estate, within which the holding of Keshav Yadav was comprised, got the entire holding of Keshav Yadav detailed in Schedule II of the plaint auction sold in execution of a certificate obtained against Keshav Yadav for arrears of rent of those lands. Keshav Yadav, thereupon filed a petition before the Collector for restoration of the holding aforesaid. This application was filed under Section 3 (1) of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938 (hereinafter referred to as the 'Act'). Section 3 (1) of the Act provides :
"A raiyat, whose holding or a portion of whose holding was sold at any time between the first day of Jan., 1929, and the 31st day of Dec., 1937, in execution of a decree for arrears of rent and was purchased by the landlord of such holding and is in the possession or under the control of the said landlord, may make an application to the Collector for the restoration to him of such holding or portion."
The landlord, i.e. the Court of Wards representing the Bahadurpur Estate, objected to the application on the ground that the aforesaid holding was no longer in possession of the landlord but was in possession of the defendants with whom it had settled the lands by 'Hukumnama' (Ext. A) dated 17-6-1938. No notice of the proceeding before the Collector appears to have been given to the defendants or the members of the family in whose name the 'Hukumnama' had been granted.
The learned Collector under the Act by his order dated 21-6-1940 (Ext, '7') rejected the objection raised by the landlord on the ground that the settlement in favour of third party was made after the 22nd day of Mar., 1938.
3. I should state at this stage that Section 6 of the Act specifies the grounds on which the landlord may object to the application for restoration of the raiyat under Section 3 (1) of the Act, The relevant ground is contained in Section 6 (1) (d) of the Act which runs as follows:--
"That the holding mentioned in the application or any portion thereof is in the possession of a third person, and that such third person is in possession of the holding or such portion on his own behalf or on behalf of some person other than the landlord under a settlement which, in the case of a holding or portion of a holding sold before the first day of Jan., 1937, was made in good faith by such landlord before the 22nd day of March, 1938, or which, in the case of a holding or portion of a holding sold between the first day of Jan., 1937, and the 31st day of Dec., 1937, was made in good faith by such landlord before the 19th day of April, 1938."
Section 6 (2) provides that upon the filing of an objection the Collector shall make such enquiry as he thinks fit and empowers the Collector to reject the application for restoration if he decides that the facts specified in either of the four clauses to Sub-section (2) of Section 6, namely, Clauses (a) to (d) exist. Clause (d) of Sub-section (2) of Section 6 provides that if the Collector finds.
"(d) that such third person is to possession on his own behalf or on behalf of some person other than the landlord under a settlement mentioned in Clause (d) of Sub-section (1) --
(i) of the entire holding or portion sold, he shall dismiss the application?
(ii) of a part of such holding or portion, he shall reject the application in so far as it relates to such part, and order that the application shall proceed with respect to the remaining part of the holding or portion;
Provided that no order under this clause shall be made unless the Collector has given notice of the application to such third person."
The Collector, as I have already stated, rejected the objection filed by the land-
lord on the ground that the settlement of the third person had been made subsequent to the 22nd day of March 1938. He, however, was of the opinion that regard being had to the facts of the case, the raiyat was entitled to be restored only to a portion of the holding sold, and acting under the provisions of Section 9 (2) of the Act which empowers the Collector to restore possession of part of the holding if the area of the holding was more than 6 acres directed by his order dated 21-6-40 (Ext. '7') that the raiyat shall be entitled to be restored to the possession of 7.5 acres of land from the South, Thereafter it appears that Keshav Yadav applied for a writ of delivery of possession and, according to the service report of the peon, possession was delivered to Keshav Yadav on 28-12-1940. Later, there were proceedings under Section 144, Cr. P. C, and ultimately a proceeding under Section 145, Cr. P. C. between one of the plaintiffs and the defendant first party in respect of the aforesaid lands which are described in Schedule III to the plaint and the learned Magistrate by his order dated 15-9-1965 declared the possession of the defendant first party over the said lands, Thereafter, on 1-8-1966, the present suit was instituted by the respondents-plaintiffs,
4. According to the plaintiffs, they continued to be in possession of the lands purchased by Keshav Yadav in spite of the rent sale in 1936 and that at any rate by virtue of the order of the Collector passed under Section 8 of the Act on 21-6-1940 and the delivery of possession effected in pursuance thereof, the plaintiffs recovered possession of the Schedule '3' lands on 28-12-1940 and continued to be in possession till 16-9-1965, when taking advantage of the order under Section 145, Cr. P. C., defendant first party dispossessed the plaintiffs from the suit land.
5. The suit was contested by the defendants 1 to 7 and 10 to 11 who filed a common written statement. Their main defence was that the holding of plaintiff Keshav Yadav which consisted of 20 bighas and odd had been auction sold and purchased by the landlord had been settled with them in the name of defendant No. 3 by the 'hukumnama' dated 17-6-1936 and ever since then, these defendants were in possession of those lands including the Schedule III lands. Their further defence was that the order of the Collector directing the restoration of the Schedule III lands was null and void as it had been passed without issuing any notice to these defendants who were settlees in possession of those lands and had no knowledge of the aforesaid restoration proceedings and that the delivery of possession was a mere paper transaction and these defendants continued to be in possession in spite of the aforesaid delivery of possession.
6. The learned Subordinate Judge who tried the case accepted the case of the defendants and dismissed the suit. On appeal by the plaintiffs, the learned Additional District Judge held that no notice was required by law to be given to the defendants in the proceeding under the Act as the settlement in their favour was made after 22nd March, 1938 and the holding was sold in 1936 and, therefore, the order of the Collector was not null and void but valid and the plaintiffs acquired title to the suit land by virtue of the said order and that the defendants had acquired no title to the lands by virtue of the 'Hukumnama' in their favour, that the plaintiffs obtained delivery of possession over the lands in suit in December, 1940 and that they continued in possession till they were dispossessed by the defendants after the order under Section 145. Cr. P. C., that their title was not lost by adverse possession and thus the plaintiffs had subsisting title over the suit lands. He. accordingly, as stated above, set aside the judgment and decree of the learned Subordinate Judge and decreed the suit for declaration of title and recovery of possession. He also held that the plaintiffs are entitled to mesne profits as claimed which would be ascertained in a separate proceedings.
7. Sri S.C. Ghosh, the learned counsel appearing on behalf of the appellants has urged that the plaintiffs acquired no title by virtue of the order of the Collector dated 21-6-40 as the order was without jurisdiction null and void. Two reasons have been advanced by Sri Ghosh in support of this contention. The first reason is that the order was passed without issuing any notice to the defendants who were in possession of the suit lands on the date the order was passed and who were visited with civil consequences by the order which deprived them of their possession over the land in suit. He contended that the provisions of the Act properly construed required that a notice be given to the person with whom the lands alleged to have been settled even if the settlement was made after 22-3-1938 in a case in which auction sale had been held in 1936. He urged that it was a fundamental principle of judicial procedure that no person should be deprived of his property without being afforded an opportunity to be heard in the matter and that the proviso to Section 6 (d) should be so interpreted as not to conflict with this fundamental principle of judicial procedure, the words "the such third person" being susceptible of the interpretation that they included even a person who was alleged to be settlee of the landlord after the dates specified in Section 1 (d) of the Act. He also contended that even if there is no express provision in the Act regarding giving of such notice to the settlee in possession, such a provision should be implied by the justice of the general law. In support of this contention he relied upon the decision in Awadh Bihari Pd. v. Ramji Mahton, (AIR 1951 Pat 56) and the celebrated decision of the Supreme Court in Smt. Maneka Gandhi v. Union of India, (AIR 1978 SC 597).
8. The other reason given by Sri Ghosh in support of the submission that the order of the Collector was a nullity is that the landlord was neither in possession nor control of the lands restoration of which was sought. He contended that the condition specified in Section 3 (1) of the Act that the landlord should be in possession or control of the lands was a condition precedent to the exercise of the jurisdiction by the Collector under the Act and if it was not proved to exist, the order of the Collector under the Act is null and void. Reliance was placed in support of this submission on a Bench decision of this Court in Mt. Nanha v. Mt. Khubsurat ((1949) ILR 28 Pat 379). Sri Ghosh further contended that the order of the Collector was null and void and inexecutable because his order is completely vague and in-executable. The order had directed restoration of 7.50 acres of land out of plot No. 491 from the South (East to West). It is pointed out that admitted-
ly Schedule III lands are not the southern portion of survey plot No. 491 and at any rate the order is vague because it is possible to carve out an area of 7.50 acres out of Schedule 2 land from south east to west in more than one fashion.
9. All these contentions were combated by Sri Parmanand Saran Sinha, learned counsel appearing on behalf of the plaintiffs-respondents. He urged that the provisions of the Act clearly excluded by necessary implication issue of notice to any raiyat claiming under a settlement made after dates specified in Section 6 (1) (d) of the Act. He urged that Section 6 (1) (d) defines and thereby limits the scope of the plea of the land of which restoration is sought by the raiyat being not available for restoration on the ground of settlement by the landlord in favour of a third party; in terms the objection is available only when the settlement bad been made prior to the dates specified therein; that the principle of expression unious alterio exclusius applies and the objection is not available when the settlement is made by the landlord after the dates specified, that raising such a plea would be completely futile and no answer to the application for restoration, and, therefore, provision of issue of notice to such a person, besides the landlord cannot be implied. He further contended that regard being had to the context, the expression such third person' in the proviso to Section 6(2) (d) means 'such third person' who is in possession under a settlement in Clause (d) of Sub-section (1), that is to say, under a settlement made prior to the dates specified therein. He further contended that the condition prescribed by Section 3 (1) regarding the land being in possession or control of the landlord was satisfied when it was in possession of a tenant holding under the landlord, the expression "possession or control" being wide enough includes within its ambit constructive possession of the landlord through his tenant. He further urged that regard being had to the context that the application was for the restoration of the holding, the expression 7.50 acres of land out of plot No. 491 from the south meant 7.50 acres of land out of the holding from the south that is to say, it was the southern portion of the holding sold that was meant and not the southern portion of survey plot No. 491.
He further urged that the question of vagueness was not raised in the written statement and could not be permitted to be raised for the first time in second appeal, for if it had been raised, evidence regarding the identity of the lands could have been adduced. He also urged that the specification of the direction from which the area restored was to be sufficient to identify the land. These arguments raise questions of construction and of law some of which it is not quite easy to answer.
10. In my opinion, however, it is not necessary to decide any of these questions because the alternative contention of Shri Pramanand Saran Sinha, namely, that on the findings of fact arrived at, the plaintiffs had acquired title to the suit lands described in Schedule III to the plaint by adverse possession is correct. Before I proceed to give my reasons, I would like to state that so for as the description of Schedule III lands in the plaint is concerned there is no vagueness as the boundary of the lands is given. This position was not disputed by Sri Ghosh. If, therefore, the plaintiffs has title of any character to the suit lands and the suit is not barred by limitation on the finding that the plaintiffs were in possession of the same till 16-9-1965 it is manifest that it is not barred by limitation there is no legal impediment in passing the decree for eviction.
11. I have already referred to the finding on the point of possession. The final findings arrived at by the learned Additional District Judge are set out in paragraph 42 of his judgment and the finding, so far as possession is concerned, runs as follows:--
"The oral and documentary evidence discussed above go conclusively to prove that the plaintiff appellants acquired title over Schedule III lands, they got possession by virtue of D.P. and that they continued in possession till they were dispossessed by the defendants respondents after the order of 145 case. I am upon the evidence satisfied that the plaintiffs respondents all along continued in possession after the D. P. in December, 1940 -- and that they were dispossessed only after the order passed in 145 case and that prior to that they all along continued in possession over Schedule III lands. This being so it is well proved from the evidence that the plaintiffs-appellants acquired title over Schedule III lands and they continued in possession till their dispossession as alleged. I hold accordingly."
I have already stated that the order under Section 145, Cr. P. C. was passed on 15-9-1965. There is, therefore a clear and categorical finding by the court of appeal below which is the final court of fact that the plaintiffs were in possession of the lands after the delivery of possession in December, 1940 till after the order under Section 145, Cr. P. C. that is till 15-9-1965. Or in other words, the plaintiffs were in possession continuously for more than 15 years. The finding, further, was that they had obtained possession by virtue of the delivery of possession, which as we have seen, was effected in pursuance of the 'order of the Collector directing the restoration to possession of the plaintiffs over the Schedule III lands. The plaintiffs, therefore, were, on the findings, in possession by virtue of the order of the Collector which purported to clothe them with the right to be in possession. Even if it be assumed for the purposes of this case that the order was null and void, the possession of the plaintiffs under the null and void order was clearly in assertion of an independent title to the land and, therefore, was clearly hostile to the defendants assuming that they were the tenants entitled to the possession of the lands. On the findings of the court of appeal below, delivery of possession over the lands had been actually effected by the peon. The learned Additional District Judge specifically stated that from the evidence of P. W. 2 who was the only surviving witness, it was well proved that the possession was given at the time of delivery of possession.' The fact that delivery was taken through court shows that the possession was open and it continued without break for more than 15 years.
12. On these findings, it is clear that the possession of the plaintiffs over the entire Schedule III lands was nee vi, nec clam, nee precario which are the classical requirments of adverse possession: Niranjan Agrawalla v. Union of India (ILR (1961) 1 Cal 261) (sic). As pointed out by Kanhaiya Sing, J. speaking for a Bench of this Court in Raju Roy v. Kasinath Roy (AIR 1956 Pat 308). "Long possession for the statutory period enjoyed openly and continuously in assertion of independent right is itself sufficient to confer an absolute right on the possessor in the land possessed". On the findings recorded by the Court of appeal below, the possession of the plaintiffs over the suit land was for the statutory period and was enjoyed openly and continuously and in assertion of independent right and therefore, was sufficient to confer on the plaintiff tenancy right in the land possessed, viz the suit land.
13. I may state that Sri Ghosh attempted to combat the aforesaid argument of Sri Sinha by urging that the aforesaid finding recorded by the court of appeal below was illegal as certain reasons given by the trial court were not considered though this finding on the point was reversed. I am unable to entertain this argument advanced for the first time in reply to the arguments on behalf of the respondents.
14. Sri Ghosh also argued that the possession of the plaintiffs was not continuous and exclusive because the defendants had paid rent for the land as found by the trial court. It is no doubt true, as held by the Privy Council in Kuthali Moothavav v. Peringati Kun-haran Kutty (AIR 1922 PC 181), that if the true owner also exercised acts of possession during the currency of his title, then those acts of possession may be sufficient to destroy that adequacy and interrupt that exclusiveness and continuity required of adverse possession. However, where the land was agricultural and capable of physical enjoyment, the possession of the plaintiffs who was in cultivating possession cannot be said to have been interrupted merely by payment of rent for the land by the defendants. Payment of rent in respect of land which is capable of physical possession and of which the true owner is entitled to khas possession is not an act of possession over the land.
15. It is true that in specific terms the plea that the plaintiffs had acquired title to Schedule III lands by adverse possession had not been raised before. But as pointed out by Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh, (1892 AC 473) in a passage which was quoted with approval by the Supreme Court in Yeshwant Deorao v. Walchand Ramchand (AIR 1951 SC 16). "When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea."
The plea that the plaintiffs had acquired title to the suit land by adverse possession arises upon facts proved beyond controversy because it arises upon the facts found by the appellate court which is the final court of fact.
16. It remains now to consider the last submission of Sri Ghosh, namely, that the plea of adverse possession cannot be raised because it was not pleaded and no issue was raised regarding this plea. In my opinion, though the plea of title by adverse possession had not been raised in the plaint in specific terms, a case of acquisition of title by adverse possession arose upon the facts stated in the plaint as all the facts relevant for raising a issue of title by adverse possession were stated in the plaint. In para. 6 of the plaint it was stated that the plaintiffs were ordered to be restored to possession over the 8 bighas and odd lands by the Collector by his order dated 21-6-1940 and that plaintiff No. 1, the karta of the plaintiffs obtained delivery of possession on 18-12-1940 and came in possession. In para 8 of the plaint it was recited that the plaintiffs were in possession of the lands specified in Schedule III to the plaint as of right by virtue of the order dated 21-6-1940 passed in the proceeding under the Act and the delivery of possession and that since the date of delivery of possession on 28-12-1940 they continued to be in possession thereof exclusively (Bela Sarakat Ahde) and peaceably (bamokaflat digre). Thereafter, in para 11 of the plaint it was recited that the plaintiffs were in possession since the date of delivery of possession i.e. 28-12-1940 continuously till the date of dispossession. The plaint therefore, contained a clear averment that the plaintiffs were continously in possession for more than 12 years peaceably and as of right in assertion of their independent title. All the facts necessary to constitute a plea of adverse possession are, therefore, clearly and unambiguously set out in the plaint. It must, therefore, be held that the plea of title by adverse possession was implicit in the case made out by the plaintiffs in their plaint. It is also manifest that if the plaintiffs are permitted to raise the plea of title by adverse possession, the defendants would not be taken by surprise. The question whether there was an order of the Collector under the Act whether the plaintiffs came in possession of the land by virtue of order, whether the plaintiffs were in possession since then till the date of dispossession, that is for more that 12 years, were controverted by the defendants and evidence regarding these facts was led on both sides and clear and specific findings regarding possession, the date on which the possession of the plaintiffs commenced and the date till which it continued were recorded.
17. It is well settled that where the relevant facts for raising an issue of title by adverse possession are raised in the pleading by a party and the facts were dealt with by the trial court and the question of adverse possession was implicit in the case made out by the party, the party can succeed on title by adverse possession even though it is not specifically pleaded at the trial stage and no issue had been raised on it and the plea is raised at the first appellate stage: Mir Mohammad Siddique v. Keshwar Singh ((1967) ILR 46 Pat 1103). In Sribhakwan Singh v. Rambasi Kuer (AIR 1957 Pat 157) also relied) upon in the case reported in (1967) ILR 46 Pat 1103, it was observed that in a suit based on title extending for more than 12 years plea of adverse possession need not be specifically pleaded as it is included In the plea of title. It is true that in those cases the plea was raised for the first time in the first appellate court but in the absence of express plea, the point can be raised in the second appellate court also subject only to this condition that the plea can be determined on the basis on the facts admitted or found to be proved by the appellate court.
18. In support of his contention that the plea of title of adverse possession could not be raised for the first time in second appeal Sri Ghosh relied upon the Bench decision of this Court in Khub Lal Upadhya v. Jagdish Prasad Singh (AIR 1922 Pat 398). It is true that in that case a plea of title by adverse possession was not permitted to be raised for the first time in second appeal. But in that case, the defendants who wanted to raise the plea had not stated in their written statement the facts on which the plea was based. It was in those circumstances that Das J. observed that if the defendants wanted to raise any question of fact "then it was obligatory on them to state those facts in the written statement and invite the Court to raise an issue on the particular facts alleged by them". Das J. also pointed out in that case that "there was no finding by the courts below when the appellants took possession of the property and in order to enable the Courts below to determine this point we would have to remand the case to the court below". I may point out that the case was distinguished in the case reported in (1967) ILR 46 Pat 1103. This contention of Sri Ghosh must, therefore, also fail.
19. I, therefore, hold that on the facts it is manifest that plaintiffs did acquire title to the suit lands by adverse possession thereof for more than 12 years that the right and the title of the defendants therein, if any, was extinguished and the plaintiffs had perfected their title thereto. Upon this finding, the appeal fails and it is, accordingly, dismissed. In the circumstances of the case, there will be no order as to costs of this Court.