Patna High Court
Ram Swaroop Singh And Ors. vs Badri Narain Singh And Ors. on 18 February, 1982
Equivalent citations: AIR1982PAT206, 1982(30)BLJR466, AIR 1982 PATNA 206, 1982 BBCJ 320, (1982) BLJ 328, (1982) PAT LJR 301
JUDGMENT M.P. Varma, J.
1. This is an appeal by the plaintiff-appellants against the judgment of reversal of the trial court by the first appellate court. The only question canvassed in this appeal is as regards the law relating to onus. In other words, whether on the facts and in the circumstances arising out of the pleadings and proof in the case, the onus did lay on the defendants to establish their case of adverse possession, if at all.
2. Brief facts of the case, as put forward, by the plaintiff-appellants are that in the suit laid, by virtue of the registered sale-deed dated 15-11-1962 (vide Ext. 5) executed by Sunaina Devi, who had claimed to have acquired title by virtue of an oral settlement from her father Jagdambi Sahai, the admitted landlord of the suit property, got a valid title. The plaintiffs on being dispossessed filed the suit for declaration of title and also for delivery of possession.
3. On the other hand, the defendants claimed the suit land by virtue of settlement from the same said landlord through a Hukumnama dated 21-3-1950 and payment of rental from that very date to the then landlord and also to the State Government thereafter. They also contended that the story of settlement in favour of Sunaina Devi is totally a myth and that she was never inducted in possession of the suit land.
4. The plaintiffs' suit being a suit for declaration of title and recovery of possession, the trial Court held that the plaintiffs acquired a valid title (vide Ext. 5 the sale deed) on the basis of the settlement of the said property with Sunaina Devi on nagadi-rental followed by possession. But the lower appellate court has reversed the findings, by the judgment, under appeal before us. The lower appellate court has, in clear terms, disbelieved the story of oral settlement or that of possession in favour of Sunaina Devi. The lower appellate court has also found that neither the plaintiffs nor their vendor had any title to or possession over the disputed land at any point of time, much less, within 12 years of the suit. Consequently, the plaintiffs neither acquired title nor possession over the land in dispute.
5. I have examined the discussions of the lower appellate court on this question and I must say that I do not find any such infirmity in the findings of the lower appellate court on this point, which may warrant an interference at this stage in second appeal. Having thus found, the suit of the plaintiffs, which was decreed by the trial court, was rightly dismissed by the lower appellate court.
6. In the present appeal Sri Balbhadra Pd. Singh learned counsel for appellants has tried to make out a distinction between the provisions contained in Article 65 of the Limitation Act, 1963 and that of the provisions contained in Article 142 of the Limitation Act 1908 which are the corresponding Articles of each other. He has relied on the introduction of the expression "based on title" appearing in Article 65 of the Limitation Act of 1963 which was not found in the earlier corresponding Article of the Limiiation Act of 1908. On that basis, learned counsel Sri Balbhadra Pd. Singh has tried to persuade that by virtue of this introduction, the plaintiffs are required only to prove title; and thereby shift the onus on the defendants to establish adverse possession. There seems to be substance in the contention. It may also be noted here that Sri Prem Lall counsel for the defendants does not dispute the position of law as put forward by the appellant.
7. Thus, in view of the contentions raised at the bar on this question, I do hold that under the present Article 65 of the Limitation Act 1963 the plaintiffs have only to prove their title and it is only thereafter, the onus shifts on the defendants to establish the plea of adverse possession. As I have already indicated that there is no infirmity in the findings of the lower appellate court that the plaintiffs have neither acquired any title to nor possession over the disputed land at any point of time, much less, within 12 years, the necessary conclusion is that the plaintiff has not proved his title thereto. The counsel for the appellants could not refer to any evidence to show that the plaintiffs' vendor Sunaina Devi was ever inducted in possession of the suit land which she had claimed by virtue of settlement. Needless to mention here that in such a case, it was necessary to give evidence and to plead that the oral settlement was accompanied with delivery of possession and that she was inducted on the land so settled to her. There being no such evidence, she does not get a valid title and consequently she cannot convey a valid title to the plaintiffs. I do not find any reasonable ground to interfere with the findings of the lower appellate court arrived at in the impugned judgment.
8. The learned single Judge has referred this case to a Bench for determination regarding the question flowing from the changes brought about the new Article 65 of the Limitation Act, 1963. The changes do have the effect as there is some departure from the established Position that existed with cases under Article 142 of the old Act. The changes have already been discussed above in the foregoing paras which are more or less, in my opinion, academic, in view of my findings that the plaintiffs failed to prove their title and consequently the question of shifting the onus does not arise. This answers the question referred to this Bench by learned single Judge, whether Article 65 of the Limitation Act, 1963 hits the present suit as held by the court below and I hold that since the plaintiffs failed to prove the title over the suit property, the suit in question must fail and there is no onus on the defendants to prove the factum of adverse possession.
9. In the result, the appeal is dismissed, but in view of certain question of law having fallen for our consideration, I do not propose to pass any order for cost.
B.P. Jha, J.
10. While agreeing respectfully with the view of my learned brother, I want to add certain observation in this case.
11. While admitting the appeal on 7-12-78, the learned single Judge formulated the following substantial questions of law :--
"(1) Whether the court of appeal below is right in holding that Article 65 of the Limitation Act had no application to the instant case ?
(2) Whether the lower appellate court was right in reversing the judgment of the trial court and in dismissing the suit of the plaintiffs when admittedly the defendants did not produce either the Hukumnama or the rent receipts on the basis of which they had claimed the tenancy right? And (3) Whether the lower appellate court was right in reversing the judgment of the trial court by making surmises and conjectures with regard to the interpolations found in the Jamabandi return by erasing and getting the name of Sunaina Devi, the vendor of the plaintiffs entered and also changing the area from 1.10 acres to 1.4 acres?"
12. So far as question No. 1 is concerned my learned brother has already decided the question rightly. The present case will fall within the purview of Article 65. If any one brings a suit for possession over immovable property or interest therein on the basis of the title, the plaintiff is required to prove the title only. There is vital difference between Article 65 and Article 142 of the Limitation Act of 1908. Under Article 142 of the Limitation Act, the plaintiff was required to prove the title and was also required to prove possession for 12 years. The plaintiff was also required to file suit within 12 years from the date of possession. In other words, the plaintiff was required to prove title and possession for 12 years from the dale of dispossession. The change which has been brought about by Article 65 is that the plaintiff is required to prove only title and not possession.
13. In the present case, the finding of the lower appellate court is that Sunaina Devi was not in possession of the suit land. It was Sunaina Devi, who executed the registered sale deed (Ext. 5) in favour of the plaintiffs. According to the case in Mohammad Hanif v. Khairat AH (AIR 1941 Pat 577) Mr. Justice Fazl Ali held at p. 590 that in a case of oral settlement the tenant must be actually inducted on the land by the land-holder. In the present case, the finding of the lower appellate court is that Sunaina Devi, the predecessor-in-interest of the plaintiffs was never actually inducted on the land. If it is so, no title was passed by Jagdambi Sahai to Sunaina Devi. It is, therefore, clear that the plaintiffs failed to prove the title of their predecessor-in-interest. So far the question No. 1 is concerned if is answered that Article 65 of the Limitation Act is applicable to the facts of the present case. The suit will fail because the plaintiffs failed to prove the title.
14. So far as question No. 2 is concerned, the lower appellate court was right in reversing the judgment of the trial court as the plaintiffs failed to prove their title. So far question No. 3 is concerned, the lower appellate court was right in reversing the judgment of the trial court as the plaintiffs failed to prove the title. I also hold that the judgment of the lower appellate court is based on consideration of the material evidence on the record and the lower appellate court has not made any surmises or conjectures.
15. In the result, the appeal is dismissed, but without cost.