Patna High Court
Mt. Atra Devi And Ors. vs Ramswaroop Prasad Singh And Ors. on 8 May, 1970
Equivalent citations: AIR1972PAT186, AIR 1972 PATNA 186
JUDGMENT B.D. Singh, J.
1. This appeal by the defendants, including some heirs of Mahabir Dhanuk (defendant No. 1) who were substituted in place of defendant No. 1 on his death, is directed against the judgment and decree dated 27-6-1958, passed by the First Additional Subordinate Judge. Patna in Title Suit No. 61/33 of 1956/57. Respondents 1 to 8 were Plaintiffs in the said suit. Respondent No. 9 was pro forma defendant; whereas respondents 10 and 11 are some of the heirs who were substituted in place of defendant No. 1. The said title suit was instituted by the plaintiffs for declaration of title and recovery of possession along with mesne profits in respect of 5.70 acres of land appertaining to survey plot Nos. 1225, 1331, 1352, 1257, 1247, 1228, 1230, 1232 and 1241, bearing Khata No. 104 of Tauzi No. 7936, situated in village Husain Chak, Police Station Bakhtiarpur, (now P. S. Harnaut) in the district of patna.
2. Plaintiffs case. In brief, was that late Mahanth Madan Mohana Nandji of Gokulpur Math was the proprietor of the said tauzi and under the same he had 12.51 acres of Bakashta lands recorded under the said Khata No. 104. In the year 1940 the said Mahanth purchased 1 bigha 18 Kathas of raiyati land appertaining to survey plot No. 1259 under khata No. 89 belonging to one Maina Dusadhin in order to excavate a tank for the use of public, and instead he permanently settled 1.23 acres of bakashta land comprising of survey plot Nos. 1252, 1385, 1389 and 1418 of the said khata No. 104 at the naqdi rental of Rs. 11 : 13/-.
In 1351 Fasli corresponding to 1944-45 A. D. the said Mahanth stood in urgent need of money for meeting some litigation expenses of the Math. Finding no alternative he wanted to settle 5.70 acres of bakashta lands appertaining to the aforesaid khata No. 104, which was the subject-matter of the suti. Ramswaroop Prasad Singh and Jagdip Singh, plaintiffs 1 & 2 respectively, offered to take permanent settlement of the said lands after offering a Naz-rana of Rs. 1,000/- in cash. The said Mahanth after receiving the Nazrana settled the suit lands permanently by a Sada hukumnama dated Jeth, 1351 fasli, with plaintiffs 1 and 2 at an annual rental of Rs. 48/6A including cess and also delivered possession of the same to them. After taking the settlement and coming into possession, Ramswaroop Prasad Singh and Jagdip Singh divided the land half and half between the each taking an area of 2.85 acres detailed under Schedule B of the plaint. The plaintiffs' further case was that since the date of settlement they were coming in peaceful possession of the suit lands over the area claimed by them separately and had been regularly paying rent to the Gokhulpur Math, and since after the vesting of the estate under the Bihar Land Reforms Act, they were paying rent to the State of Bihar.
In the year 1947 the succeeding Mahanth Bisheshwara Nandii was also in need of money for performing Sradh ceremony of his Guru Madan Mohana Nandji, and he settled 10 bighas 7 Kathas and 2 dhurs of Bakashta lands of Khata No. 104 including lands of khata No. 89 which were purchased from Mossammat Maina Dusadhin, as mentioned earlier, by a registered patta and kabuliat. In 1949 plaintiff No. 1 and Make-shwar Singh (since deceased) who was brother of plaintiff No. 2 purchased 5.80 acres equivalent to 9 1/4 bighas appertaining to plot Nos. 1240, 1249 and others, by a registered sale deed dated 4-7-1949, from Kashi Sao and Ramji Sao. Plaintiff No. 1 had purchased the same in the name of his wife and in the name of the brother of plaintiffs 2 to 5. The land under plot No. 1249 was in mortgage. Therefore, the purchasers redeemed the mortgage on 26-5-1950 and subsequently both set of purchasers divided the land half and half among themselves. Plaintiff No. 1, for the sake of convenience in cultivation, amalgamated the disputed plot 1247 with plot 1249. Similarly plaintiff No. 2 also amalgamated his share of land in Plot No. 1240 with disputed plots Nos. 1232 and 1241.
The plaintiffs stated In their plaint that there was a theft committed in the house of plaintiff No. 1 and several documents including the said hukum-nama dated Jeth, 1351 Fash" were stolen. They had, therefore, lodged a saneha dated 17-10-1951 regarding the said theft. In the month of Jeth, 1362 Fasli corresponding to the year 1955 A. D., the plaintiff No. 1 was in urgent need of money. Therefore, he transferred .70 acres of land appertaining to plot No. 1257 to Jagarnath Mahto (respondent No. 7) who took possession of the same, and later on Jagarnath Mahto got a sale deed executed for the same on 5-9-1955. in the name of his minor son Bindeshwar Mahto, plaintiff No. 8 (respondent No. 8). The plaintiffs alleged that Mahabir Dhanuk, defendant No. 1, and Pato Dusadh, defendant No. 4, both residents of village Hussain Chak, in collusion with other raiyats of the said village including one Ragho Mahto, Dafadar, filed two petitions dated 12-8-1955 under Section 144 of the Code of Criminal Procedure before the Sub-divisional Officer Barh alleging therein that as servants of the Math defendant No. 1 had taken settlement of 2.93 acres whereas defendant No. 4 had taken settlement of 2.77 acres (total being 5.70 acres) under Khata No. 104, the disputed land. by virtue of two separate hukumnamas dated 22nd Magh, 1347 fasli corresponding to 1940-41 A. D., granted by the late Mahanth after receiving salami. During the pendency of the proceeding under Section 144 of the Criminal Procedure Code, the Sub Inspector of Police, Bakhtiarpur P. S. visited the spot and found some disputed plots amalgamated with undisputed plots of the plaintiffs as alleged by them. Thereafter the plaintiffs filed their show cause in the said proceeding on 12-10-1955. The said proceeding was converted into one under Section 145 of the Code. The Magistrate after perusing the record of the case and hearing the parties decided in favour of the defendants by order dated 13-3-1956. The plaintiffs' case was that the defendants being emboldened by the said order of the Magistrate, finally succeeded in dispossessing the plaintiffs from the suit land on 14-3-1956; thereby a cloud was cast on the title of the plaintiffs and as they were dispossessed they had no alternative than to file the said title suit seeking the declarations mentioned above. Thus, those were the circumstances in which the said title suit was instituted.
3. Out of the various defendants only Mahabir Dhanuk (defendant No. 1) and Pato Dusadh (defendant No. 4) appeared in the suit and filed one joint written statement. Their case, in short, was that the suit lands originally were in possession of Mahanth Madan Mohana Nandji as bakasht land. In Jeth 1346 Fasli corresponding to 1939 A. D., defendant No. 4 took permanent settlement of 2.93 acres appertaining to plots Nos. 1241, 1247 and 1257, whereas defendant No. 1 took the remaining 2.77 acres of the suit land appertaining to plots Nos. 1225, 1228, 1230. 1232, 1352 and 1331 of Khata No. 104 on bhauli rental and both of them took their respective lands in cultivating possession. On 22nd Magh, 1347 fasli defendant No. 1 paid Rs. 444/- whereas defendant No. 4 paid Rs. 468/- by way of salami to the said Mahanth as fixed at the time of settlement in Jeth, 1346 Fasli. In token of settlement the said Mahanth granted a hukumnama to each one of them per pen Bisheshwar Lal Patwari and put his own signature on both the hukumnamas. Thereafter the defendants paid bhauli rent till the year 1353 fasli corresponding to 1946-47 A. D. and regularly obtained receipts. The receipts for the year 1347 fasli were signed by the Mahanth himself. In 1354 Fasli when Bisheshwara Nandii succeeded Madan Mohana Nandji, the bhauli rent payable for the lands which were settled with defendants 1 and 4, was commuted into naqdi rent For the lands of defendant No. 1 the cash rent was fixed at Rs. 27/9/- annually including cess, whereas for the land of defendant No. 4 it was fixed at Rs. 29/-annually including cess. In 1354 Fasli the said Mahanth granted receipts to those defendants in proof of the payment of naqdi rents so fixed and himself signed on the receipts. On 30th Bhado, 1359 fasli corresponding to 1952-53 A. D. one lump sum of Rs. 135/- as cash rental for the period 1355-59 fasli was paid by defendant No. 1 whereas Rs. 141/- was paid by defendant No. 4 to Mahanth Harkrishna Nand (defendant No. 11 -- respondent No. 9) who had succeeded Bisheshwara Nandji, and had become President of the Math Committee. Defendant No. 11, had issued one hukumnama to each defendants 1 and 4 and directed his Diwan Dwarika Lal (P. W. 10) to grant receipts to defendants 1 and 4. When they met P. W. 10, he declined to obey the direction of the said Mahanth, and did not grant receipts at the instance of plaintiffs Nos. 1 to 4, who wanted to grab the suit lands. The further case of the defendants was that the story of settlement, as disclosed by the plaintiffs, on payment of Rs. 1,000/- as salami in the year 1351 fasli, was not correct. The suit lands were already settled with defendants 1 and 4. Therefore, Mahanth Madan Mohana Nandji could not have settled the same land in the year 1351 fasli with the plaintiffs. According to the defendants, the plaintiffs never came in possession of the suit lands on the strength of the alleged settlement. The story of settlement, division, payment of rent, grant of receipts to the plaintiffs and amalgamation of the suit lands were all denied in the written statement. The defendants also alleged that the hukumnamas in favour of the plaintiffs did not exist and, therefore, the story regarding theft thereof was also false. They asserted that the order in the proceeding under Section 145 of the Code of Criminal Procedure was rightly decided in their favour, and the same was not initiated in collusion with other raiyats, and the receipts produced by the defendants in the said proceeding were all genuine documents, and not forged and fabricated as alleged by the plaintiffs. They alleged that plaintiff No. 1 being an influential person and being one of the trustees of the Math Committee, succeeded in taking the present Mahanth in collusion with himself and the plaintiffs have fabricated all the documents themselves to support their case. The plaintiffs were bent upon interfering with the peaceful possession of the defendants over the suit lands and, therefore, the defendants initiated the proceeding under Section 144 of the Criminal Procedure Code which was later converted into one under Section 145 of the Code. They lastly contended in the written statement that the suit was barred by limitation, estoppel, waiver, acquiescence, adverse possession and was also bad on account of misjoinder of causes of action.
4. On the pleadings of the parties the following issues were framed by the learned Additional Subordinate Judge :--
1. Is the suit as framed maintainable ?
2. Have the plaintiffs any cause of action for the suit ?
3. Is the suit barred by general and special law of limitation, estoppel and acquiescence ?
4. Have the plaintiffs any title to the suit lands and are they entitled to recover possession ?
5. Are the plaintiffs entitled to recover Rs. 560/- the sale proceeds of the suit lands while under attachment ?
6- Are plaintiffs entitled to recover mesne profits ?
If so. to what extent and from whom ?
7. To what relief, or reliefs are the Plaintiffs entitled?
Out of the above various issues, only issue No. 4 is important on which the result of this appeal depends.
5. Both the parties adduced documentary as well as oral evidence in support of their respective cases. In order to establish settlement, on behalf of the plaintiffs P. Ws. 6, 9, 10 and 14 were examined. To prove possession and amalgamation P. Ws. 1, 2, 3, 4, 5, 7, 8, 13, 14 and 17 were examined. On the other hand, on behalf of the de-dendants, in order to establish settlement and possession. D. Ws. 1, 2, 3, 4, 5, 6, 7, 8 and 12 were examined. The learned Additional Subordinate-Judge after considering the evidence on the record decided issue No. 4 in favour of the plaintiffs holding that the plaintiffs succeeded in proving their title as well as possession within a period of 12 years from the date of the suit and they were, therefore, entitled to the declaration sought for by them and were entitled to recover possession of the suit lands from the defendants. Aggrieved by the said finding, as mentioned earlier this appeal has been preferred by the contesting defendants.
6. Mr. Prabha Shankar Mishra, learned counsel appearing on behalf of the appellants, challenged the impugned judgment and decree and made the following submissions for consideration by this Court:--
(i) Plaintiffs have failed to produce primary evidence on the question of settlement. They have not been able to establish the loss of hukumnama on which their evidence was based. According to learned counsel, secondary evidence regarding the contents of the Hukumnama was inadmissible. The hukumnama admittedly being sada it was inadmissible except for collateral purposes. Therefore, secondary evidence would not have been on better footing than the original hukumnama itself.
(ii) P. Ws. 6, 9 and 10 have not deposed regarding the contents of the hukumnama nor they have connected in their evidence the suit land with the alleged settlement.
(iii) The plaintiffs having failed to establish title, they could not have succeeded by establishing only possession over the suit land. In order to succeed the plaintiffs were required to prove title and further possession over the suit land within 12 years of the suit. They could not succeed merely on the basis of any weakness in the defence case.
(iv) Defendants by overwhelming evidence, both documentary and oral, were able to establish prior settlement of the disputed land by the then Mahanth of the Math in the year 1346 Fasli followed by a Sada hukumnama in 1347 Fasli. According to learned counsel the findings of the Magistrate on the basis of the hukumnama in favour of the defendants are admissible and they established settlement of the suit land with the defendants.
(v) Even if it is assumed that the defendants have failed to establish title, the learned Subordinate Judge failed to appreciate the evidence led on behalf of the defendants which clearly establishes that the defendants being in continuous possession for 17 to 18 years over the suit land, they had perfected their title thereon by adverse possession.
7. The submissions made by learned counsel under (i), (ii), (iii) and (iv) are all inter-dependent. Therefore, for the sake of brevity it will be convenient to discuss them together. Learned counsel drew my attention to paragraph 5 of the impugned judgment where the learned Additional Subordinate-Judge dealt with issue No. 4. He observed that the best thing would have been for the plaintiffs to examine the present Mahanth, namely, defendant No. 11, but defendant No, 11 did not file any written statement supporting the case of the plaintiffs nor he examined himself in the proceeding under Section 144 of the Code of Criminal Procedure It is true that Dwarika Lal (P. W. 10), Diwan of Gokhulpur Math, was examined on behalf of the plaintiff. In his evidence he stated that after the settlement with the plaintiffs, laggits were prepared by the Math. Even then those laggits were not produced to prove the case of the plaintiffs. Learned counsel contended that some counterfoil rent receipts were filed on behalf of the plaintiffs. They were Exhibits 3 and 3 (a) for the years 1345 and 1347 fasli and Exhibit 3 (b) for 1356 Fasli. According to the case of the plaintiffs, the settlement was in the year 1351 fasli. Therefore, those counterfoils were not at all relevant. A petition (Exhibit F) was filed on behalf of the defendants to show that by the said petition all the counterfoils receipt books for the period 1347 to 1360 Fasli were taken back from the court, which were produced by the Math. All those counterfoil receipt books which were taken back related to the tauzi in question and of Husain Chak Mahal. If those counterfoil books would have been on the record they would have established, according to learned counsel, the settlement of the suit land with, the defendants and would have demolished the story of settlement put forward by the plaintiffs. He drew my attention to some of the passages of the impugned Judgment where the learned Judge observed that undoubtedly some hide and seek had been played by the Gokhulpur Estate, and the plaintiffs had not been able to satisfactorily account for non-production of those counterfoil receipt books. He further observed that it was apparent from the evidence on the record that Gokhulpur Estate was in the habit of maintaining duplicate sets of receipts for the same very land receipts which were issued by the Estate in the name of different persons. The Estate was also in the habit of setting up one tenant against the other. From the previous deposition (Exhibit G) of Dwarika Lal (P W. 10) in Title Suit No. 64/24 of 1950/54 it is clearly established that the affairs of the Math were not very clean. Therefore, it was difficult to believe the bona fides of the Estate when it was proved from the documents that the Math was in the habit of fabricating papers and was also in the habit of setting up one set of tenants against the other. He also referred to Exhibit 10, the first information report dated 17-10-1950, which was filed on behalf of the plaintiffs in order to show that the relevant hukumnama was stolen and therefore, it could not be produced. In Ext. 10 there is no specific mention regarding the fact that the hukumnama was stolen, although there is specific mention regarding other documents having been stolen. He submitted that the learned Judge has not given any finding as to whether he relied on Ext. 10 or not. He urged that the alleged hukumnama was the primary evidence to support the case of settlement and the title of the plaintiffs over the suit land. That having been not produced and the relevant counterfoil books or laggits having not been produced by the plaintiffs they utterly failed to establish their title over the suit land. In the absence of preliminary evidence the plaintiffs endeavoured to establish their title by leading secondary evidence through their witnesses, namely, P. Ws. 6, 9, 10 and 14. He contended that the learned Judge erred in holding that the plaintiffs succeeded in establishing settlement in the absence of hukumnama alleged to have been stolen, through the evidence of P. Ws. 6. 9, and 10 besides Ram Swaroop Prasad Sinha, plaintiff No. 1 (P. W. 14), who have all spoken about the settlement of the suit lands by the Math in favour of the Plaintiffs. The secondary evidence, he argued, was inadmissible in evidence. It could have been admissible, according to him, only under Section 65 (c) of the Evidence Act which provides :--
"Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--
* * * * * *
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time."
In the absence of finding of the learned Judge that in fact the hukumnama was stolen, the evidence regarding the contents of the hukumnama was not admissible. In order to substantiate his contention he relied on a decision of this Court in Mohanlal Sah v. Samal Ram Potdar. (AIR 1961 Pat 300) where Mahapatra. J. while dealing with the provisions under Section 65 (c) of the Evidence Act observed that where the plaintiffs have not proved loss of original document, they were not entitled to tender its certified copy as the basis of their suit as secondary evidence. He also relied on a decision of the Supreme Court in Sital Das v. Sant Ram. (AIR 1954 SC 606) where their Lordships observed while dealing with Sections 63 and 65 of the Evidence Act that in a case where no foundation was laid, no secondary evidence under Section 65 of the Act was permissible.
8. In my judgment, it is true that the learned Judge has not given finding as to whether he relied on Ext. 10 in order to show that the said hukumnama was lost. In that view of the matter the contention of learned counsel is well founded. No doubt, in that circumstance, the evidence of P. Ws: 6, 9, 10 and 14 cannot take the place of the hukumnama. However, their evidence, in my opinion, may be used to prove that the settlement of the suit land was made by the Mahanth with the plaintiffs in their presence. Since P. W. 14 is plaintiff No. 1 himself, he is highly interested. On that account I may omit the consideration of his evidence, but so far the evidence of P. Ws. 6, 9, and 10 is concerned, it has to be seen whether their evidence is acceptable on the point of settlement or not even if the story of settlement by hukumnama is completely ignored. Learned counsel, as mentioned earlier, also submitted that the sada hukum-nama, as it is firmly established, was inadmissible except for collateral purposes. Therefore, the secondary evidence given by P. Ws. 6, 9, and 10 would be admissible only for collateral purposes. No. doubt, this contention of learned counsel is also correct, provided the evidence of P. Ws. 6, 9 and 10 is only on the basis of the said hukumnama, but if they have deposed that the settlement with the plaintiffs was made in their presence, or they knew about the settlement, there is no reason to discard the evidence of P. Ws. 6, 9 and 10, if they are held to be reliable. Therefore, whether the plaintiffs have succeeded in establishing their story of settlement will depend on the evidence P. Ws. 6, 9 and 10.
9. Learned counsel also submitted that since in the instant case the defendants had challenged the title and the possession of the plaintiffs over the disputed land and since the defendants themselves claimed title and possession for more than 12 years over the suit land, the plaintiffs could succeed only if they could establish both title and possession over the suit land. He urg-ed that the plaintiff's suit would stand or fall on the own strength of the plaintiffs. They cannot succeed due to the weakness of the defendants' case. He submitted that the learned Judge further erred in laying great stress that the plaintiffs succeeded in establishing their possession over the suit land within 12 years from the date of the suit and they were entitled to the declaration sought by them. On the facts and in the circumstances of the case, according to the learned counsel, the principles that possession follows title would not be applicable. In order to find support to his contention he relied on a Full Bench decision of this Court in Jaldhari Mahto v. Raiendra Singh, (AIR 1958 Pat 386). where their Lordships while dealing with the provisions contained under Articles 142 and 144 of the Limitation Act (1908). observed that the rule pronounced in the Full Bench decision of Shiva Prasad Singh v. Hira Singh, (AIR 1921 Pat 237) was not of universal application and should not be extended beyond the facts of that case, and the case of landlord and tenant was entirely different and did not come within the ambit of the doctrine therein laid down The Full Bench decision in AIR 1921 Pat 237 (supra) did not purport to lay down that in a suit for eiectment on the ground of dispossession, the presumption for possession arising from admitted or proved title was not at all available. It was incontrovertible that ordinarily in a suit for eiectment the plaintiff must prove his antecedent title and possession within the statutory period. But cases might arise where the possession might be Inferred only from title and other circumstances of the case, even though the evidence might not conclusively establish actual physical possession. Their Lordships further observed that in a suit for ejectment the initial burden lay on the plaintiff to Drove that he had the title to immediate possession by ejectment of the defendants. If the suit was based on the ground of dispossession or discontinuance of possession and the defendant was in possession and asserted title independent of the title alleged by the plaintiff, then barring certain cases, where on proof of plaintiff's title possession was presumed with him on the principle that possession follows title, the plaintiff must prove in addition that he was in possession within twelve years of the suit.
Learned Counsel laid much stress on the latter part of the observation and contended that in the instant case It was incumbent upon the plaintiffs to prove title in addition that he was in possession within twelve years of the suit.
10. On the other hand, Mr. Lal-narayan Sinha, appearing on behalf of the plaintiff-respondents, relied on a Bench decision of this Court in Govind Dutta v. Jagnarain Dutta, (AIR 1952 Pat 314) where Ramaswami and Sarjoo Prosad, JJ. while dealing with Articles 142 and 144 of the Limitation Act (1908), observed at page 315 in Paragraph 4 that possession is a good title against all but the true owner, and a person in peaceful possession of the land has, as against everyone but the true owner, an interest capable of being inherited, devised or conveyed. Their Lordships for the above principle relied on Asher v. Whitlock : (1865) 1 OB 1 at p. 6. Their Lordships also relied on a decision in Ismail Ariff v. Mahomed Ghous, (1893) ILR 20 Cal 834 (PC), where the Judicial Committee reiterated the priniciple that lawful possession of land was sufficient evidence of risht as owner, as against a person who has not title whatever, and that the plaintiff was entitled to a declaratory decree and an injunction restraining the wrongdoer from interfering with his possession.
On the other hand, Mr. Prabha Shankar Mishra. in reply, contended that the principle laid down in AIR 1952 Pat 314 (supra) was not applicable to the instant case. According to him, the principle that possession follows title is applicable only under Section 9 of the Specific Relief Act 1877. He further submitted that for taking advantage provided under Section 9 of the Specific Relief Act the suit has to be instituted within six months of dispossession prior to the date of the suit. He urged that in the instant case the suit was not instituted by the plaintiffs under Section 9 of the Specific Relief Act. In my opinion there is nothing to show that their Lordships in AIR 1952 Pat 314 (supra) were considering the case which was covered under Section 9 of the Specific Relief Act. Section 9 of the Specific Relief Act, in my view, in no way controls the operations of Section 110 of the Evidence Act or a suit based upon possessory title. Section 9 provides a summary remedy to a person who has. without his consent been dispossessed of immoveable property otherwise than in due course, of law, for recovery of possession without establishing title. A distinction has to be drawn between a suit based upon possessory title and a suit under Section 9 of the Specific Relief Act. In the former case the plaintiff would be entitled to a decree only where the plaintiff's possession was sufficient proof of his title, while in the latter case the Court has merely to see whether the plaintiff was in possession within six months prior to the date of the institution of the suit. In Ranjit Singh v. Jholi Singh (AIR 1929 Pat 601) a Bench of this Court while dealing with a suit based on possessory title, observed that possession is prima facie proof of title; and it is well established that previous possession is a good foundation for a suit in eiectment although the plaintiff who instituted the suit may not be able to establish any title in himself, provided that the defendant does not establish a better title to the disputed property. Similarly, in Ram Keshwar Mahton v. Hari Charan Mahton, (AIR 1947 Pat 444) Meredith, and Sinha, JJ. at p. 446 held:--
"............This peaceful possession for a number of vears is prima facie evidence of title sufficient to enable the plaintiffs to recover, unless the defendants can show a better title, whereas in fact the findings are that the defendants, unlike the plaintiffs, are mere trespassers. The legal position has been settled so far as this Court is concerned by several decisions which are binding upon us. In (11 Pat LT 34) = (AIR 1929 Pat 601) a Bench of this Court held that though a person suing in eiectment can only recover by the strength of his own title and not by the weakness in the title of his adversary, yet possession is prima facie proof of title under Section 110, Evidence Act. and previous possession is a good foundation for a suit in eiectment although the plaintiff who instituted the suit may not be able to establish any title in himself, provided that the defendant does not establish a better title to the disputed property. Similarly, in Bodha Ganderi v. Ashloke Singh, (ILR 5 Pat 765) = (AIR 1927 Pat 1) another Bench observed that where a person who has been in possession of property for several years without title is dispossessed by another, who also has no title, the former is entitled to be restored to possession."
Even the observations made in AIR 1958 Pat 386 (FB) (supra) by a Full Bench of this Court are not of much assistance to the contention put forward on behalf of the appellants. What their Lordships have held in that case, they have summarised in Paragraph 36 at page 398 which reads to this effect:--
"In a suit for ejectment the initial burden lies on the plaintiff to prove that he has the title to immediate posses-sion by ejectment of the defendant. If the suit is based on the ground of dispossession or discontinuance of possession and the defendant is in possession and asserts title independant of the title alleged by the plaintiff, then barring the cases, above stated where on proof of plaintiff's title possession is presumed with him on the principle that possession follows title, the plaintiff must prove in addition that he was in possession within twelve years of the suit."
From the above it is clear that the observations made by their Lordships do not apply to those cases where on proof of plaintiff's title possession is presumed with him on the principle that possession follows title.
Therefore, the submission of learned counsel under point No. (iii) fails.
11. Learned Counsel for the appellants further contended that plaintiff No. 1 was one of the trustees of the Math Committee and he was friendly with the president of the Trust (defendant No. 11). Therefore, he could have easily filed the laggit which was prepared by the Math after the lands were allegedly settled with the plaintiffs and the two rent receipts which were granted per pen of P. W. 10 to plaintiffs 1 and 2 at the instance of Mahanth Bisheswara Nandji; the bahi of the Math Showing that nazrana of Rupees 1000/-was paid by the plaintiff No. 1 at the time of settlement; and the account book of the Math maintained by the cashier to show that rents paid by plaintiffs 1 and 2 were duly recorded therein. Instead of filing these documents as mentioned earlier, even the counterfoil of rent receipts from the year 1347 to 1360 Fasli regarding tauzi No. 7936 of village Hussain Chak which were produced on behalf of the Math, were withdrawn from the Court in the said title suit through an application dated 26-11-57 (Ext. F). Therefore, he submitted the adverse inference ought to have been drawn by learned Additional Subordinate Judge for non-filing of laggits etc. and for withdrawing the counterfoil receipts referred to above, under Ext. F. In my opinion. simply because plaintiff No. 1 was one of the trustees of the Math, it cannot be presumed that those documents were in the control of plaintiff No. 1. It is admitted case that the president of the Trust was the Mahanth, defendant No. 11. It may be recalled that the learned Subordinate Judge had already observed that the Math estate was in the habit of setting one tenant against the other and although the present Mahanth was added as defendant No. 11, he took no interest in the suit; nor he filed written statement. In that view of the matter it cannot be held that defendant No. 11 was helpful to plaintiff No. 1, and the documents of the Math were in the control of plaintiff No. 1.
In Devidas v. Shri Shailappa. (AIR 1961 SC 1277) their Lordships while dealing with Section 114, illustration (g) of the Evidence Act observed that where there is no evidence on the record to show that the document was with the plaintiffs or within their power: and that it was withheld from the Court, the Court would refuse to raise an adverse inference against the plaintiffs. 1 12-15. (After discussion of some evidence His Lordship proceeded).
16. Mr. Prabha Shankar Mishra, then referred to the order dated 13-3-56 which was passed by the Magistrate in the proceeding under Section 145. Criminal Procedure Code; holding defendants 1 and 4. being the first party, in possession of the suit land. In that order the genuine hukumnama was filed, and receipts were also filed therein, and after considering the evidence on the record, the Magistrate decided in favour of defendants 1 and 4. He submitted that the learned Subordinate Judge erred in not relying on the said order of the Magistrate. In order to substantiate his contention he relied on a Bench decision of this Court in Mahabir Pandev v. Ram Narain Singh. (AIR 1959 Pat 406) and contended that no doubt the Civil Court was entitled to come to a different finding altogether, but he ought to have referred the decision in the proceeding under Section 145. Criminal Procedure Code and oueht to have given reasons as to why he differed with the findings re-garding possession given in the said proceeding by the Magistrate. He drewmy attention to Paragraph 6 of the jude-ment where their Lordships observed:
"Mr. Prasad next pointed out that the learned Additional District Judge in appeal had not applied his mind to the decision of the Magistrate in the 145 proceeding and had given no reasons for discarding his finding regarding possession of the appellant. This contention is equally without merit. In the first place the decision of the Magistrate in that proceeding is not binding upon the Civil Court, it is entitled to come to a different finding altogether.
Secondly, the finding that the plaintiffs were in possession amounts to sufficient refutation of the findings of the learned Magistrate. Thirdlv. the learned Additional Subordinate Judge had in fact considered the findings of the Magistrates in the 145 proceeding and reached the conclusion that they could not be supported either in law or in fact. It is true that the learned Additional District Judge has not referred to the decision in the 145 proceeding. It is. however, well to remember that the judgment of the appellate Court is a judg-ment of affirmance, and it is not necessary that all the reasons given by the learned Additional Subordinate Judge should have been considered and reproduced.
The affirmance of his findings of possession implies that the learned Additional District Judge had considered all the reasons eiven by him including the decision in the 145 proceeding. The finding of the Courts below regarding the title and possession of the plaintiffs is thus unexceptionable. This contention. therefore, must be reiected."
In my view, the above observation is of no avail in the instant case, as I find that at various places the learned Judge referred to the decision made by the Magistrate in the proceeding under Section 145. Criminal Procedure Code. After discussing the evidence led by the plaintiffs and the defendants 1 and 4 he came to the conclusion that the plaintiff's case of settlement. amalgamation and possession was true and he further held that the plaintiffs were dispossessed from the suit land only during the proceeding u/s. 145. Criminal Procedure Code by defendants 1 and 4. He also held that the evidence led on behalf of the defendants was not reliable.
17. Learned Counsel further referred to Ext. 1. which is an order dated 14-7-56 passed by the Circle Officer in case No. 38/8/27 of 1955-56 wherebv the defendants were directed to be mutated on the disputed land. In that case, defendant No. 4 was the cetitioner whereas plaintiff No. 1 and others were the op-posite party. Learned counsel urged that this was also one of the important piece of documentary evidence in favour of the defendants. In my opinion, the learned Subordinate Judge was not bound by the said order. He was entitled to come to a different findnig altogether on the evidence led by the parties before him. II may be noticed that the said order of the Circle Officer was passed lust after the order dated 13-3-56 passed by the Magistrate in the proceeding under Section 145. Criminal P. C. Therefore, it anoears that reiving on the order dated 13-3-56 the Circle Officer passed the aforesaid order dated 14-7-56. As such nothing of importance turns upon Ext. I.
18. The learned Judge after considering all the relevant documentary evidence placed on behalf of the defendants and after considering the oral evidence of D. Ws. 1, 2, 3, 4 (defendant No. 1), 5, 6, 7, 8 and 12 (defendant No. 4). who were witnesses on the question of granting of hukumnama. settlement and possession, decreed the suit of the plaintiffs and did not rely on the evidence of defendant's witnesses.
19. It was contended on behalf of the appellants that the learned Judge erred in appreciating the oral evidence led by the parties in coming to the conclusion which he reached. According to learned counsel, he ought not to have relied on the witnesses examined on behalf of the plaintiffs.. According to him, he ought to have relied on the witnesses examined on behalf of the defendants. In Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh. (AIR 1951 SC 120) their Lordships while dealing with the provisions under Section 107 of the Civil Procedure Code, observed that where the question for consideration for the appellate Court is undoubtedly one of fact the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage, which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is --and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the creditability of witnesses. then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Their Lordships further observed that the duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Court, outweighs such finding. Keeping, in view the observation made by their Lordships. I now propose to deal with the oral evidence led by the parties in order to find out whether the learned Subordinate Judge has failed to appreciate the evidence of those witnesses referred to above.
19-23. (After discussion of Evidence His Lordship proceeded).
24. After considering the evidence of all the witnesses and the other materials placed before me by learned counsel for the parties. I am convinced that the plaintiffs have been able to establish their case and they were entitled to the decree as passed by the learned Subordinate Judge, and the defendants have failed to establish their case regarding settlement and possession. No doubt, there are some other witnesses examined on behalf of the parties, but they are not relevant to the issue, nor they were placed or referred to by learned counsel for the parties. Therefore, it is not necessary to discuss their evidence. In the result, the contentions put forward by learned counsel for the appellants under point Nos. (i) to (iv) which I have considered together, fail.
25. Now I take up his submission under point No. (v) wherein he contended that the defendants even if they have failed to establish settlement they perfected their title over the suit land by adverse possession. In my opinion, this contention also fails because I have alreadv held while dealing with point Nos. (i) to (v) that the plaintiffs have succeeded in establishing possession over the suit land prior to the date when they were dispossessed by the defendants, because of the order passed by the Magistrate in the 145 proceeding. But before that they (Plaintiffs) were continuouslv in possession as stated by most of the witnesses for a number of years as indicated above.
26. In the result, the judgment and decree of the Court below have got to be upheld. The appeal therefore, is dismissed with costs.