Patna High Court
Jugeshar Tewari And Ors. vs Sheopujan Tiwary And Ors. on 25 February, 1985
Equivalent citations: AIR 1986 PATNA 35, (1986) BLJ 460
JUDGMENT Satya Brata Sanyal, J.
1. This is plaintiffs' appeal against the judgment of affirmance. It arises out of a suit for declaration of title and recovery of possession of Schedule 1 land of the plaint as well as for mesne profits and permanent injunction.
2. The appellants claimed the suit land as their ancestral property recorded as kasht land in favour of their ancestor in the cadastral survey khatian. The lands are near river Banas and are frequently visited by floods. Some time in 1969 they were dispossessed. Hence they have instituted the suit. They deny that the suit lands were even auction sold.
Defendants Nos. 1, 5, 6, 7, 8, 9, 10 and 11 filed written statement and denied the title of the plaintiffs as well as the story of dispossession. According to them, the suit lands were mortgaged which was followed by mortgage execution cases" and they were auction purchased by them followed by sale certificates and delivery of possession. In their written statement they claimed the lands set out in Schedules 1 to 5. Schedules 1 to 4 are stated to have been acquired by sale certificates which are Exhibits I series. So far as Schedule 5 land is concerned, it was claimed by adverse possession. After the death of defendant No. 1, defendant No. 2, his widow, filed another written statement with five schedules giving out the current plot numbers. It has been stated that Schedules 1 to 4 were acquired through sale certificates whereas Schedule 5 by adverse possession.
3. These are all the facts which are necessary for determination of the questions raised before me.
4. At the time of the admission of the appeal two questions were framed, namely, (1) whether the plaintiffs' suit could have been dismissed with respect to plot Nos. 966, 1053, 163, 1314, 792 and 927, the defendants having not claimed the said plots and/or could the suit of the plaintiffs be dismissed without there being any pleading raised by the defendants with respect to the aforesaid plots; and (2) whether the suit was rightly dismissed with respect to Schedule 5 land of the written statement without there being any discussion and finding as to the fulfilment of the ingredients of adverse possession and a clear finding by the lower appellate court after such discussion.
5. I may state here before entering into the discussion of the aforesaid questions that it appears from para 15 of the lower appellate court's judgment that Schedule 1 land is claimed under the sale certificate (Ext. 1/2), Schedule 2 land under Exhibit 1, Schedule 3 land under Exhibit 1/3 and Schedule 4 land under Exhibit I/1. In the first written statement the Schedules appended to the written statement only stated, kitas and not plot numbers. So also is the case in the sale certificates. However, in the Schedules of the written statement of defendant No. 2 plot numbers have been clearly set out which really reiterate the first written statement by clarifying the confusion with respect to the plot numbers. At the time of argument learned counsel for the appellants did not press his case with respect to plot Nos. 163 and 792 as on scrutiny it was found that those two plot numbers have been included in Schedules 1 to 4.
6. It was urged by Mr. L. S. Sinha, learned counsel for the appellants, that the schedule lands being ancestral lands and the defendants having claimed their title to the said lands by purchase, it was for the defendants to plead and prove as to how they acquired the aforesaid plots. Assuming the finding of the auction sale to be correct, the defendants having set up a definite case with respect to the disputed property and if they have put forward no pleading with respect to the aforesaid plots, the courts below erred in law in dismissing the suit in relation to those plots. So far as the second question is concerned, learned counsel took me through the judgment of the appellate court and demonstrated that there has been no discussion of adverse possession except a bald finding that the defendants have acquired the land of Schedule 5 by adverse possession. He also took me through the trial court's judgment (paragraph 16) and submitted that it, according to learned counsel, manifests no consideration of the ingredients of adverse possession.
7. Mr. Kamlapati Singh appearing for the defendants, on the contrary submitted that the plaintiffs must succeed on their own case and not on the weakness of the case of the defendants. He further contended that there is no substance in the first point because those plots have been claimed, considered and rejected by the courts below. He drew my attention to para 12 of the trial court's judgment with respect to plot Nos. 966 and 1053 and the trial court found that the defendants have purchased the major portion of the suit lands prior to the survey and the title of the plaintiffs will be deemed to have been extinguished on the basis of these sale certificates and delivery of possession. He drew my attention to page 22 of the lower appellate court's judgment and demonstrated that in a proceeding under Section 145 of the Criminal P.C. dt. 4-5-1928 the defendants were found in possession of plot No. 1314 (Exhibit G/2). The lower appellate court has also found in para 14 that plot No. 927 has been admitted in Exhibit 2/A by the plaintiffs and/or their ancestors. So far as the question of adverse possession is concerned, learned counsel for the defendants submitted that it was a judgment of affirmance and, therefore, if the lower appellate court has not considered the reasons given by the trial court, it does not vitiate the judgment under appeal because the trial court has considered the said question in para 16 of the judgment.
8. Having heard learned counsel for the parties, I am not satisfied with respect to the first point urged by Mr. Sinha, learned counsel appearing for the appellants. The main written statement incorporates the area and kitas because at the time when the sales were effected there were no plot numbers available. It is true that the heir of defendant No. 1 in her written statement has given the current plot numbers and from Schedules 1 to 4 the plots in question are not discernible. Be that as it may, the written statement of one of the defendants cannot be binding upon the other defendants. There may be an omission in giving the plot numbers in those Schedules. The courts below have considered this question and, as rightly pointed out by Mr. Kamlapati Singh, each of these plots was found in possession of the defendants by rejecting the claim of the plaintiffs. I, therefore, do not find any substance in the said point.
9. So far as the question of adverse possession is concerned, there is no discussion whatsoever by the lower appellate court with respect to the said question beyond recording a finding that Schedule 5 land has been acquired by adverse possession. Admittedly this belonged to the plaintiffs and their ancestors. This land admittedly was not acquired by the defendants by any instrument of transfer. The onus was upon the defendants, therefore, to prove that the title of the plaintiffs was extinguished by their remaining in possession openly and in hostility to that of the plaintiffs. It may be remembered that the suit was instituted after the coming into force of the Lim. Act of 1963 and the plaintiffs were not required to prove their subsisting title in view of the change in the law of limitation. The trial court has stated "There is no evidence that the plaintiffs have remained in possession of the suit lands in spite of the auction sale". It is not the defendants' case that they have purchased the land under auction sale. The trial court has further said that the plaintiffs have not been able to prove that they were first dispossessed in the year 1969 and they have not been able to produce rent receipts for the entire area of the disputed land. From all these I am satisfied that the defendants have not been able to discharge their onus cast upon them in support of their claim of acquiring Schedule 5 land by virtue of being in adverse possession and, therefore, the plaintiffs' suit for the plots mentioned in Schedule 5 of the written statement of defendant No. 2 could not be dismissed. The onus has been cast upon the plaintiffs to prove their subsisting title, which has vitiated the judgment on this score.
10. I, therefore, allow the appeal partly with respect to Schedule 5 land as mentioned in the written statement of defendant No. 2 and dismiss their appeal claiming title and possession to Schedules 1 to 4 lands of the written statement of defendant No. 2. I do not, however, allow any mesne profits for Schedule 5 land because they claim dispossession in the year 1969 and the suit has been instituted in the year 1970. Further, according to the plaintiffs' own case, the suit lands are frequented by floods. Therefore, the prayer for mesne profits is rejected.
11. In the result, the appeal succeeds with respect to Schedule 5 land (Schedule 5 of the written statement of defendant No. 2) and is dismissed with respect to the plots set out in Schedules 1 to 4 of the written statement of defendant No. 2. There will be no order as to costs.