Patna High Court
Inderdeo Singh And Ors. vs Janeshwar Singh And Ors. on 21 December, 1951
Equivalent citations: AIR1952PAT429, AIR 1952 PATNA 429
JUDGMENT Narayan, J.
1. This is a defendants' appeal arising out of a suit for declaration of title and recovery of possession with regard to 2.52 acres of land recorded in the survey in khata No. 67. One Gokul Kahar was the tenant recorded in the survey with regard to this land and, according to the plaintiffs' case, he died leaving surviving him a son named Janki and a widow named Batasia. Janki died in 1944 leaving behind a minor son named Balgovind and a widow named Chandreshrr Kaharin. The plaintiffs claim to have purchased the lands in question from Chandreshri Kaharin through a sale deed dated the 12th March 1946, which purports to have been executed by Chandreshri on her own behalf and as the guardian of her minor son. The plaintiffs' allegation is that they came in possession of the land after this purchase, but that the defendants created trouble leading to a proceeding under Section 144 of the Criminal Procedure Code, in which the order was against the plaintiffs. Dispossession is said to have taken place after the order in the Section 144 proceeding.
2. The defendants who are the landlords contended that the plaintiffs had acquired no valid title to the property and that they or their alleged predecessors-in-interest had not been in possession of this land during the period of 12 years preceding the institution of the suit. The version put forward by the defendants was that Gokul did not leave any son Janki and that Musammat Batasia, the widow of Gokul, surrendered this land in their favour in Jeth 1330 Fasli corresponding to the English Calendar year 1923, that ever since the surrender they have been in possession of it.
3. The Court of first instance rejected the story of surrender put forward by the defendants, but it held that the plaintiffs had not been able to prove that they or their alleged vendors had been in possession of this land for a period of 12 years preceding the institution of the suit. The suit was accordingly dismissed by the learned Munsif.
4. On appeal, the learned Subordinate Judge of Gaya decreed the suit on the finding that the plaintiffs had been able to prove their title and possession over the land.
5. Mr. Rajkishore Prasad appearing for the defendants-appellants has contended that the decision of the learned Subordinate Judge cannot be regarded as a decision according to law so as to be binding on this Court in second appeal, and I am inclined to agree with the learned Counsel that the decision of the Court of appeal below cannot be sustained. The defendants had produced some documents for proving their possession over the lands in question, and those documents included certain canal parchas.
While referring to these canal parchas, the learned Subordinate Judge says that they are "no doubt stumbling blocks in the way of the plaintiffs", but he rejects them by a process of reasoning which appears to me to be curious. He says that he is not prepared to place too much of reliance on these parchas. It is difficult to understand what he actually meant by using ' the expression "too much of reliance" and it certainly appears from this observation of his that he was not inclined to reject these documents as thoroughly unreliable. His next observation in this connection is that "the influential landlords who had collusively brought into existence a fraudulent deed of transfer could easily have surreptitiously got entries made in canal purchas in their own names and in the names of persons of their camp". Mr. Pandey Narsingh Sahay, who appeared for the respondents before me, could not contend that this was a sound observation simply because the defendants had propounded a document for proving the alleged surrender which has been rejected by the Courts below as an unreliable document, it could not be held that the other documents which they had produced were also unreliable. Canal parchas are documents issued by the Canal Department and they stand on an entirely different footing as compared to a deed of surrender which was a private document, and if the defendants had engineered a fraudulent deed of surrender, it could not be presumed that they would collude with the canal authorities for manufacturing the canal parchas and other canal papers such as the Khesra and the water rates receipts.
It is, therefore, manifest that the learned Subordinate Judge could not reject these canal parchas as unreliable documents on any satisfactory ground, and his observation that they should be rejected because the deed of surrender has been rejected is absolutely unsound. Then he proceeds to consider some of the canal parchas, in one bf which the name of Baleshwar Hajam stands recorded and in the other that of Bifan Kahar. Regarding this Baleshwar Hajam, the case made out by the defendants was that they had got plot 1102 by exchange and that thereafter his name was recorded in the canal khesra with regard to this plot. The learned Munsif has discussed the question of exchange and, in his opinion, the canal parcha (exhibit A-11), standing in the name of Baleshwar Hajam, is a good piece of evidence for proving the exchange and the possession of the defendants. The learned Subordinate Judge does not seem to have considered the question of exchange and hence it cannot be urged that he has properly considered the canal parcha standing in the name of Baleshwar Hajam.
Besides parchas standing in the names of Bifan and Baleshwar, there are certain other parchas standing in the names of some of these appellants. One of these parchas is a parcha of the year 1923 and there are other parchas which appear to bear the dates 1928 and 1929. The learned Subordinate Judge, while he considered it necessary to refer to the parchas standing in the names of Baleshwar and Bifan, did not consider it necessary to refer to the parchas standing in the names of the appellants themselves. It is true that he has discussed the oral evidence and he finds that the witnesses of the plaintiffs are more reliable than the witnesses of the defendants, but the question of possession could not properly be decided without considering these documents, and, so far as the canal parchas are concerned, it is obvious that he has not considered them in a satisfactory manner, though, to use his own language, they are the stumbling blocks in the way of the plaintiffs.
6. Learned Counsel for the respondents drew my attention to a decision of this Court in 'Mohan Bikram Shah v. Deonarain Mahto', AIR 1945 Pat. 453, in which it was observed that the value to be attached to canal papers as evidence of possession is a matter for the Court of fact, and that its decision on the evidentiary value of those papers as proof of possession is a decision on a question of fact and not of law. Nobody can dispute this proposition of law and I never mean to say that, if the learned Subordinate Judge would have rejected these canal papers as absolutely unreliable documents, it would have been open to me to say in second appeal that they are documents proving the possession of the defendants. What I have said above is only this much that the process of reasoning by which the learned Subordinate Judge has refused to act on these canal parchas is open to serious criticism and, as his reasoning stands, these documents cannot be deemed to have been properly considered by him.
Exhibit 2 is another important document which, as conceded by Mr. Pandey Narsing Sahay, has not been considered by him. Mr. Rajkishore Prasad drew my attention to an entry in this document showing that at least one of the plots stands recorded in the names of the landlords. It is a document which had been filed by the plaintiffs, and there is no reason why this document should not have been considered by the learned Subordinate Judge. It is possible that, after a proper consideration of this document, it may be found to be helpful to the plaintiffs. But the fact is that it has not been considered by the learned Subordinate Judge, and hence that is another criticism which can be advanced against the judgment of the learned Subordinate Judge. I am, therefore, of the opinion that this is not a judgment which can be binding on this Court in second appeal. The appeal is allowed and the judgment and decree of the learned Subordinate Judge are set aside and the case is remanded to the lower appellate Court for a fresh decision according to law. The costs of this appeal will abide the final result.