Patna High Court
Janki Missir And Anr. vs Dharamraj Missir And Ors. on 17 December, 1973
Equivalent citations: AIR1974PAT254, AIR 1974 PATNA 254, ILR (1974) 53 PAT 428 1974 BLJR 242, 1974 BLJR 242
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT S.K. Jha, J.
1. The only two defendants in the suit are the appellants in this appeal against a judgment and decree of reversal. The respondents had instituted the suit out of which this appeal arises under Order 21, Rule 103 of the Code of Civil Procedure (hereinafter referred to as the 'code') for declaration of their title and recovery of possession over the lands described in Schedule A of the plaint which comprised portions of plots 98 and 108 appertaining to khata No. 48 of village Chakki Nawanga Mausame Rasoolpur Ramkarhi. The total area of both these plots is 435 bighas and odd out of which plaintiff No. 1 respondent No. 1 claimed 29 bighas 15 kathas 10 dhurs, plaintiff No. 2 respondent No. 2 an area of 5 bighas 9 kathas 2 durs, plaintiff No. 3 respondent No. 3. 6 bighas 8 dhurs and plaintiff respondent No. 6, 5 bighas 12 kathas 18 dhurs. the total area involved in the suit thus being 59 bighas 19 kathas 13 dhurs out of the aforesaid 425 bighas and odd. The learned Subordinate Judge who tried and heard the suit dismissed it, but on the plaintffs having appealed, the learned Additional District Judge, who heard the appeal decreed the suit. The defendants have challenged the appellate decree of the learned Additional District Judge.
2. Shortly stated the respondents' case as set out in the plaint was as follows. The village in question was cadastrally surveyed in the year 1935-37 and the names of the father of plaintiffs respondents Nos. 1, 2, 4 and 5 and uncle of plaintiff respondent No. 6 and plaintiff respondent No. 3 himself were entered in the survey record of rights in respect of the kast lands in their possession, but the unculturable lands were entered in Gairmazarua Gang Barar, khata No. 48 having an area of 425 Bighas 6 khatas. Since this huge area was mostly Munj and Junge and sand at that time, it was entered in the names of eleven leading persons of the village, who represented the plaintiff ancestors as well as the other kastkars of the village. In a proceeding under Section 145 of the Code of Criminal Procedure these eleven persons representing the entire village were declared to be in possession of the entire area in the village in question. During the survey proceedings in spite of the fact that the aforesaid eleven persons asserted their claim with respect to the entire area of the village, in a proceeding under Section 103-A of the Bihar Tenancy Act the Settlement Officer rejected their contentions with regard to the culturable lands of the village, but since the Gairmazarua Gang Barar Khata was not capable of actual physical possession at the time, he left it jointly in the names of those eleven persons.
The further case of the plaintiffs respondents was that on the strength of the entry against khata No. 48 of the village in question the eleven persons recorded in the khatian and their descendants brought a collusive suit for partition in the court of the Subordinate Judge, Arrah of which the plaintiffs had no knowledge and a collusive final decree was obtained in that suit on 10-4-1956 and a prayer for delivery of possession was made in two execution cases being Nos. 9 and 11 of 1958. A pleader commissioner was appointed by the learned Subordinate Judge to give delivery of possession and when he went to the spot, he dispossessed the plaintiffs from their respective areas in dispute and put the appellants in possession of those areas, and it was then that for the first time the plaintiffs came to know of the fraudulent intentions of the group of those eleven leading members of the village.
The plaintiffs thereafter filed nine miscellaneous cases under Order 21, Rule 100 of the Code before the First Additional Subordinate Judge, Arrah claiming that they were in possession on their own account and in their own right. The defendants entered objections in the aforesaid proceeding and their main defence was that the eleven recorded persons did not represent the whole village and in a subsequent suit brought by the Maharaja of Dumaraon against the recorded tenants claiming the lands to be his zirat, the raiyats entered into a compromise with the Maharaja by which they were recognised as tenants and rents were fixed. The plaintiffs further came to know from the objections filed by the defendants in the proceeding under Order 21, Rule 100 of the Code that there were rent suits brought in respect of the holding in question by the Maharaja of Dumaraon against the recorded tenants, but the plaintiffs or their ancestors were not even parties to those rent suits.
The case of the plaintiffs further was that in the aforesaid proceeding evidence was led by them to prove that they were in possession of the lands on their own account and that in the suits brought by the Maharaja of Dumaraon either for title or for rent they were not parties, and, therefore, those judgments shall have no binding effect on them. And further that the persons who entered into compromise with the Maharaja had no right or authority to compromise on behalf of the plaintiffs and their ancestors. The proceeding under Order 21, Rule 100 of the Code was, however, decided against the plaintiffs and hence they were compelled to file this suit under Order 21, Rule 103 of the Code.
3. The appellants' defence, in short, was that the plaintiffs or their ancestors were never in possession of the suit lands; that the aforesaid eleven persons did not represent the others; that in the Title Suit No. 30 of 1935 brought by the Maharaja of Dumaraon against the plaintiffs and defendants' ancestors as well as other raiyats of the village, the lands of khata No. 48 were allotted to the share of the family of the eleven persons aforesaid including the defendants' ancestors and not to the plaintiffs' family, who chose to take other lands and gave up their claim, if any, to the lands of khata No. 48. The plaintiffs and/or their ancestors having chosen to take other lands under the compromise in Title Suit No. 30 of 1935 and in the compromise decree of the same date, the lands of this khata having been allotted to the family of those eleven persons including the defendants' predecessors in interest, and the defendants having been in possession ever since to the complete exclusion of the plaintiffs, the plaintiffs' suit was barred both by limitation and the principles of estoppel.
4. The trial Court framed the following relevant issues:
"3. Is the suit barred by limitation?.
4. Is the suit barred by estoppel?.
6. Did the recorded tenants of khata No. 48 of villages Chakki Nawanga Mausuma Rasoolpur Ramkarhi represent the plaintiffs or their ancestors at the time of survey in respect of the said khata?.
7. Have the plaintiffs got title to the lands in suit? If so, are they entitled to recovery of possession?
8. Is the story of possession and dispossession as set up by the plaintiffs correct?
So far as issue No. 6 is concerned, the trial Court held in favour of the plaintiffs that the disputed plots Nos. 98 and 108 of khata No, 48 were recorded in the khatian in the names of the eleven leading members not in their individual capacity, but in the representative capacity representing the other co-sha-
rers including the plaintiffs or their ancestors. With regard to the other issues, the learned Subordinate Judge held that the story of possession and dispossession as set up by the plaintiffs respondents was incorrect, the suit was barred by limitation as well as estoppel and the plaintiffs had got no title to the suit lands. On the question of estoppel the trial Court held that since in Title Suit No. 30 of 1935 brought by the Maharaja of Dumaraon against the plaintiffs and/or their ancestors on the one hand and defendants and/or their ancestors on the other the lands involved in the present suit were allotted under the compromise decree to the share of the defendants' predecessors-in-interest along with the other family members of those eleven persons in whose names plots 98 and 108 were recorded in the cadastral survey and the plaintiffs or their predecessors in interests impliedly gave up their claim to any portion of these two plots and got lands of other plots in other khatas under that very compromise decree, the plaintiffs were, therefore, estopped by their conduct from claiming any title to any portion of the aforesaid two plots. It was further held by the trial Court on the question of limitation that since the plaintiffs were out of possession, at least since 1940, amounting to their ouster openly and exclusively by the defendants or their predecessors-in-interest and since they had failed to substantiate their story of dispossession by the pleader commissioner in course of the delivery of possession under the final partition decree between the defendants and their co-sharers inter se the plaintiffs' suit was obviously barred by limitation. On, inter alia the aforesaid findings the learned Subordinate Tudge dismissed the plaintiffs' suit.
5. On appeal, however, the Lower Appellate Court held that the plaintiffs were not expected or required to prove possession within twelve years from the date of the suit and their suit could not fail on that account, that no case of ouster had been made out in the present suit and, therefore, there could not be any question of the plaintiffs losing their title on account of adverse possession. It was further held that there was no evidence that the plaintiffs or their ancestors had knowledge of the compromise between the Maharaja of Dumaraon and Govind Missir and others. Therefore, there could not be any question of estoppel nor could the compromise decree bind the plaintiffs or their ancestors. The Lower Appellate Court also accepted the argument advanced in course of the hearing of the appeal before it on behalf of the plaintiffs, who were appellants before it that the aforesaid title Suit No. 30 of 1935 instituted by the Maharaja of Dumaraon did not relate to the present suit lands which are in Rasoolpur Ramkarhi whereas the lands involved in Maharaja's Title Suit related to Mahaji Ramkarhi. It was further held that since the lands of khata No. 48 of the present suit were not subject-matter of the aforesaid Maharaja's suit, it was evident that tie compromise was fraudulent in character and that was an additional ground as to why that compromise decree could not be binding on the plaintiff-respondents. It followed as a necessary corollary that the partition suit of 1951 between Govind Missir and his co-sharers was also collusive and fraudulent with a view to defeat the rights of the plaintiffs. Thus on the aforesaid findings the learned Additional District Judge reversed the decree of the trial Court and decreed the plaintiffs-respondents' suit.
6. Mr. Thakur Prasad, learned Counsel for the defendant urged the following points in support of this appeal:
(1) The compromise decree in Title Suit No. 30 of 1935 would operate as res judicata in the present suit.
(2) in any event, the plaintiffs and their predecessors-in-interest would be estopped by their conduct to put forward any claim of right, title or interest in the suit lands in view of the fact that by the same compromise decree they got exclusively lands of other plots and khatas. Plots Nos. 98 and 108 of khata No. 48 of the present suit were allotted exclusively to the share of the defendants and their other co-sharers of their predecessors-in-interest whose names had been recorded in the cadastral survey.
3. The order passed in the proceeding under Section 145 of the Code of Criminal Procedure in 1933 in favour of the eleven persons of the village including the defendants' predecessors-in-interest would be binding on everyone claiming any lands within that area and that therefore, a suit was necessary to be instituted within three years of the final order passed in that proceeding in order to evict the persons in whose favour the order was passed. That not having been done the suit was barred by limitation.
4. It was incumbent on the plaintiffs in ejectment suits of the present nature to have proved possession and dispossession within twelve years. That not having been done, since evidently after the compromise decree at least from the year 1940 the defendants and their co-sharers of their predecessors in interest had been coming in uniterrupted possession by force of the compromise decree and, therefore, in their own right to the exclusion of the plaintiffs, the present suit of the plaintiffs must be held to be barred even by the twelve years rule of limitation.
5. In any event, the present suit of the plaintiffs was incapable of being decreed, as they cannot be held to be entitled to any specific portion as claimed by them from out of the large area of Plots Nos. 98 and 108 of khata No. 48, the total area of which, as already stated, is 425 bishas 6 kathas 5 dhurs.
6. The Lower Appellate Court was not at all justified in holding that the lands in the present suit were not involved in Title Suit No. 30 of 1935 instituted by the Maharaja of Dumaraon, as such a fact had neither been pleaded nor any issue raised thereon. Con-
sequently, based on this reasoning the findings of the Lower Appellate Court that the compromise decree in Title Suit No. 30 of 1935 and the decree in Partition Suit No. 105/18 of 1951/52 were fraudulent and collusive could not be sustained.
7. The findings of fact in the judgment of reversal of the Lower Appellate Court were not binding in the second appeal, as the documentary evidence considered and discussed by the trial Court in paragraph 26 of its judgment had not at all been considered by the Lower Appellate Court.
7. For the sake of convenience I shall first deal with point No. 3 urged by Mr. Thakur Prasad. There is no substance in the contention that the three years period of limitation from the 24th March, 1933 on which date the proceedings under Section 145 of the Code of Criminal Procedure were decided (see Ext. 7) would apply. This is for the simple reason that on the strength of this very order the subsequent entry of the names of the aforesaid eleven members of the village had been made in the cadastral survey record of rights and the courts below have concurrently come to a finding that the names of those eleven persons had been so recorded not in their individual capacity, but in their representative capacity including the interests of the plaintiffs' predecessors-in-interest. It is further to be noted that the proceedings under Section 145 of the Code of Criminal Procedure were not between the aforesaid eleven members on the one hand and the remaining persons of the village on the other. As a matter of fact, the proceedings were between the members of two distinct villages, who had set up their respective claims with regard to 976 bighas and odd of lands including the lands in the present suit. The Ext. 7 was not an order against the plaintiffs or their predeccssors-in-interest which would attract the three years rule of limitation.
8. I shall now take up the short question involved in point No. 6 of learned Counsel for the appellants. I have no hesitation in holding that there is much substance in the contention put forward that the Lower Appellate Court was absolutely unjustified in holding that the lands in the present suit were not. those that were involved in Title Suit No. 30 of 1933. These are two strong reasons which would vitiate such a finding of the Lower Appellate Court. I have set out in detail the case of the plaintiffs as pleaded in the plaint. Nowhere has it been pleaded nor could anything be shown to us in the plaint by Mr. K. D. Chatterjee, learned Counsel appearing for the respondents that there was any pleading to this effect nor was any issue on such a question of fact raised before the trial Court nor was it canvassed there even in course of argument. It is a well settled principle of law tbat where a claim has never been made in the pleadings presented on a question of fact no amount of evidence can be looked into upon a plea which was never put forward. (See Saddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1)).
Apart from this technical reason, even as a matter of substance there could have been no justification for the Lower Appellate Court to have directed itself to the question as to whether the lands involved in Title Suit No. 30 of 1935 were or were not those involved in the present suit. It is the admitted case of the parties that the present suit lands, namely, Plots Nos. 98 and 108 of khata No. 48 were included in the 976 bighas and odd of lands which were the subject-matter of the proceedings under Section 145 of the Code of Criminal Procedure decided on the 24th March, 1933. It is also not in dispute that the entry in the cadastral survey subsequently in the year 1936-37 was made on the basis of the aforesaid order- Admittedly also the suit instituted by the Maharaja of Dumraon was in respect of the entire 976 bighas and odd of lands which has been the subject-matter of the 145 proceedings. It also appears from Ext. B which is the plaint of Title Suit No. 30 of 1935 that in paragraph 6 thereof specific mention has been made with regard to those lands having been the subject-matter of 145 proceedings which were decided on the 23rd March, 1933. Thus there could not be any doubt that the proceedings under Section 145 which were admittedly in respect of the present suit lands also were directly the subject-matter of Title Suit No. 3 of 1935. The reference to village Chakki Nawanga Mausume Mahaii Ramkarhi in the plaint of Title Suit No 30 of 1933 (Ext. B) instead of village Chakki Nawanga Mausume Rasoolpur Ramkarhi must evidently have been on account of the confusion prevailing at that time as to in which village the lands of these two plots Nos. 98 and 108 fell. It is to be noted that the cadastral survey records of rights of these villages came into existence in 1936-37 and the aforesaid title suit of the Maharaja of Damaraon had been instituted in the year 1935. For both these reasons the finding of the Lower Appellate Court that the identity of the lands involved in the present suit would rot be the same as those involved in Title Suit No. 30 of 1935 (was wrong). Consequently, therefore, the finding with regard to fraud and collusion which was based mainly on this ground must also be held to be vitiated. The entire chain of reasoning advanced by the learned Additional District Judge for coming to a conclusion about the fraudulent and collusive nature of the compromise decree in Title Suit No. 30 of 1935 and Partition suit No. 105/18 of 1953/52. between the defendants and their other co-sharers inter se must fall to the ground.
9. The questions involved in points Nos. 5 and 7 by learned Counsel for the appellant are also of substance. It does not appear from the entire records of the case as in how and when the plaintiffs got any exclusive right, title or interest to the specific areas of lands claimed by them in the present suit. No picture emerges in the case as to how and when these 59 bighas 19 kathas and 13 dhurs involved in the suit out of Plots. Nos. 97 and 108 having a total area of 425 bighas and odd came to be the exclusive properties of these six plaintiffs nor as to how these six plaintiffs in their turn came exclusively to own and possess distinct area as claimed by them. There is also substance in the contention put forward on behalf of the appellants that the documentary evidence (numerous rent receipts etc.) considered by the trial Court in paragraph 26 of its judgment had not even been referred to by the Lower Appellate Court. As such the finding on the question of fact may not be binding in second appeal, but it is not necessary to dispose of this appeal on such points alone, as I shall presently show that the appeal is fit to be allowed on other more substantial grounds that the plaintiffs' suit is liable to be dismissed.
10. I shall presently deal with points 1, 2 and 4 of learned Counsel for the appellants. Before doing so, it may be necessary to recapitulate some salient facts and features of this case relevant for the determination of these points. As would appear from the judgment of the trial Court as also the plaint of Title Suit No. 30 of 1935 (Ext. B), originally the ancestors of the present plaintiffs had not been made parties to the aforesaid title suit. Subsequently, however, on their applications having been made to add them as party defendants, they were so added as defendant No. 41 Jagesar Rai, defendant No. 44 Nagina Rai, defendant No. 46 Nihora Rai, defendant No. 49 Ramjanam Rai, defendant No. 52 Sheotahal Missir and defendant No. 66 Sheopujan Rai to that suit. The aforesaid Jagesar Rai was the father of the present plaintiff No. 5, Nagina Rai was the uncle of the present plaintiff No. 2, Nihora Rai was the uncle of the present plaintiff No. 6, Ram Janam Rai was the father of the present plaintiff No. 6, Sheotahal Missir was the father of the present plaintiff No. 1 and Sheopujan Rai was the present plaintiff No. 3 himself. In that title suit there were sixty six defendants in all which included the plaintiffs' ancestors as well as the ancestors of the present defendants along with the remaining family members of the aforesaid eleven leading persons of the village. The reliefs sought for in that suit by the Maharaja of Dumaraon were for declaration of title and recovery of khas possession in respect of 976 bighas and odd of lands including the present suit lands and in the alternative for fixation of fair rent at the rate of Rs. 10/- per bigha per annum as against such of the defendants of that suit, who may be found to be not liable to eviction. Subsequent to the filing of the suit and the entering of the defence compromise petitions between the Maharaja of Dumaraon on the one hand and most of the defendants on the other were filed on different dates all of which were disposed of on the same date under the compromise decree dated the 26th September, 1940. (Ext. G), By virtue of the aforesaid compromise decree the plaintiffs' ancestors got settled different lands to which they had not set up any claim and the entire lands of these two plots were settled with the present defendants' ancestors and their other co-sharers and rent was since also fixed under the compromise decree. Thereafter, the different parties, who had been allotted different pieces of lands under the aforesaid compromise decree came in respective possession of the lands so allotted to them on payment of rent and obtaining rent receipts. In paragraph 26 of the trial Court judgment reference is made to numerous rent receipt (Exts. A series) showing payment of rent of the disputed plots by the defendants' ancestors and their co-sharers to the Maharaja of Dumaraon. On failure of some of them to pay the rent due for some years, rent suits were brought by the Maharaja against the defaulting tenants which were decided one way or the other from time to time. In this background it will have to be judged as to whether there is any substance in points 1, 2 and 4 urged on behalf of the appellant.
11. So far as the question of res judi-cata is concerned the argument of learned Counsel for the appellants must be rejected. It is a settled principle of law that if the relief given to the plaintiff does not require or involve a decision of any case between the co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains. The three prerequisite conditions to be fulfilled in order to attract the doctrine of res judicata between co-defendants are (i) the conflict of interest between the co-defendants (ii) the necessity to decide that conflict in order to give the plaintiff appropriate relief and (iii) a decision of the question between the co-defendants. None of the aforesaid three requisites is fulfilled in the present case so as to hold that the compromise decree in Title suit No. 30 of 1935 may operate as res judicata between the parties to the present suit who were all co-defendants in that suit.
12. There is, however, much substance in the argument put forward that the present plaintiffs by their conduct must be held to be estopped from setting forth any claim in respect of the lands in suit. Evidenty, as stated earlier the plaintiffs' ancestors were putting forward a claim and setting up title in them also in respect of the present plots in dispute in the aforesaid title suit No. 30 of 1935. Subsequently, however, they filed a petition for compromise wherein they were satisfied with lands given to them from other plots and khatas for which rent was also fixed and which were not being claimed by them in that Title Suit. By separate compromise petitions the lands in the present suit were allotted exclusively to the present defendants' ancestors and other persons and rent was also accordingly separately fixed and the [compromise decree in terms of the aforesaid compromise petitions was passed on the same date in presence of the parties' representatives. It would in these circumstances be too much to hold that the present plaintiffs and/or their ancestors were not aware of any such compromise decree or that there had been any fraud or collusion in obtaining that compromise decree to which they themselves were parties. It is also clear from Exts. A series that rents were thereafter being paid by the different persons including the present defendants in respect of the two plots in dispute in whose favour the lands had been settled under the compromise decree aforesaid. Plaintiffs also came in possession of the lands allotted to them under the compromise decree appertaining to other plots of other khatas and" this act of possession by the respective parties to their respective portions of lands commenced as far back as in 1940 when the aforesaid compromise decree was passed. Evidently, therefore, the plaintiffs by their conduct allowed the defendants to remain in exclusive possession of the lands in suit on payment of the entire rent for the areas allotted to them and the plaintiffs in their turn came in possession of different lands for which they were paying their own rent. The doctrine of estoppel by conduct in my view must be attracted in the aforesaid facts and circumstances. While contesting this position Mr. K. D. Chatterji, learned Counsel for the respondents urged that there could not be any estoppel by conduct unless there was a representation made by the parties against whom estoppel is pleaded and that the party complaining must have acted upon that representation and must have altered his position to his prejudice. Reliance was placed in this connection on the case of R. S. Maddanappa v. Chandramma, AIR 1965 SC 1812. This argument of learned Counsel does not take notice of the full discussion of law by their Lordships of the Supreme Court in the aforesaid case. In paragraph 10 of the judgment their Lordships have quoted with approval the general principle of estoppel stated by the Lord Chancellor in Cairncross v. Lorimer, (1860) 3 HLC 829 thus:
"The doctrine will apply, which is to be found, I believe in the laws of all civilized nations that if a man cither by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had not sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.......... I am of opinion, that, generally speaking, if a party having an interest to prevent an act being done has full notice of its being done, and acquiesees in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his siniority, he has no more right to challenge the act to their prejudice than he would have had if it has been done by his previous license."
In my view, the principle enunciated above applies on all fours to the facts of the present case. The plaintiffs or their ancestors had a right to object to the compromise being recorded between the Maharaja of Dumaraon and the defendants' ancestors which they failed to do though the compromise decree was recorded in their presence as under the same compromise decree different lands were allotted to their share. Thus they having an interest to prevent an act being done with full notice of its being done acquiesced in it inducing a reasonable belief in the minds of the defendants or their ancestors that they consented to it. The defendants also altered their position by under-taking the obligation to pay the entire rent for the areas so allotted to them and their co-sharers by giving credit to the plaintiffs' sincerity, and, therefore, the plaintiffs have no more right to challenge the act, namely, the compromise decree to the prejudice of the present defendants.
13. Apart from the question of estoppel by conduct, another insurmountable difficulty that is presented in the present case before the plaintiff respondents is that after the compromise decree of 1940 the defendants and their co-sharers came in exclusive possession of the lands allotted to them, namely, the suit lands on payment of rent therefor to the complete exclusion of the plaintiffs or their ancestors and that too with their knowledge since they were parties to the compromise decree. That being so, from 1940 the defendants must be deemed to have continued in possession to the complete ouster of the plaintiffs or their ancestors and if the present suit not having been instituted within twelve years after the 26th September, 1940, which was the date of the compromise, there does not seem to be any reason as to why the order passed under Order 21, Rule 100 of the Code of Civil Procedure against the plaintiffs be set aside. The plaintiffs not having proved their possession and dispossession within twelve years of the suit which was instituted on the 27th July, 1959, the suit must be held to be barred, as the plaintiffs respondents cannot be held to have any subsisting title to the suit lands.
14. For the aforesaid reasons, I hold that the plaintiffs' suit must be dismissed, the judgment and decree of the Lower Appellate Court must be set aside and that of the trial Court restored. The appeal is accordingly allowed, but in the circumstances of the case there will be no order as to costs.
Untwalia, C.J.
15. I agree.