Patna High Court
Bhogal Paswan And Ors. vs Mt. Bibi Nabihan on 22 August, 1963
Equivalent citations: AIR1963PAT450, AIR 1963 PATNA 450
JUDGMENT A.B.N. Sinha, J.
1. This appeal is by the defendants. It is directed against the concurrent decisions of the Courts below decreeing the plaintiff's suit for declaration of title to, recovery of possession of and mesne profits in respect of 1 bigha 11 kathas 11 dhurs of land out of survey plots 265 and 269 appertaining to khata No. 79, tauzi No. 7143 of village Sahdeni, district Muzaffarpur, which admittedly belonged to one Sheikh Mahbub whose name stood recorded in the survey record of rights in respect of the khata in question. According to the defendants-appellants themselves, Sheikh Mahbub died sometime in 1906.
2. Trie plaintiff claims to be the daughter of Sheikh Mahbub. Her case is that after the death of her father, she along with her mother inherited the properties including khata No. 79 left by him and continued in possession as such. Her mother, according to her case, died about twelve years before the institution of the suit, and, the plaintiff asserted that since then she has continued in exclusive possession of the suit lands until the 15th November, 1955 when the defendants illegally dispossessed her. On these allegations, the plaintiff prayed for declaration of title, recovery of possession and mesne profits.
3. The case of the defendants was that Sheikh Mahbub died issueless about fifty years ago, that the plaintiff had no concern with the lands, that upon the death of Sheikh Mahbub his lands were treated as abandoned and the landlord entered into possession of the same, that thereafter the landlord settled the lands comprised in khata No. 79 with three persons, namely, Haider Mian, Zahoor Mian and Ramjan Mian, who came into possession of the lands settled with them, that by a registered sale deed dated the 15th December, 1916, Pargas Paswan, ancestor of the defendants, purchased 1 bigha 3 kathas out of plots 265 and 269 of khata No. 79 from two of the aforesaid settlees, namely, Zahoor Mian and Ramjan Mian, and that since then the defendants have been in possession throughout of the lands purchased on payment of rent. The defendants further alleged that even the plaintiff's son Syed Jan took a sale deed dated the 21st January, 1941 in respect of the remaining portion of the lands of khata No. 79 from Bibi Wakilan, widow of Haider Mian. Thus, the defendants claimed both title and possession in themselves with respect to 1 bigha 8 kathas on the basis of the sale deed dated the 15th December, 1916. It was also pleaded that the suit was barred by limitation.
4. The essential questions in controversy between the parties were: (1) whether the plaintiff was the daughter of Sheikh Mahbub, the recorded tenant, and (2) whether the plaintiff's case of possession and dispossession was true. The Courts below concurred in answering both the questions in the affirmative and decreed the suit. The defendants on appeal to this Court succeeded in obtaining a remand to the lower appellate Court for a reconsideration of the entire evidence, already on the record, with a direction that while reconsidering the oral evidence adduced on behalf of the plaintiff on the question of her parentage, the provision of law as laid down in Section 50 of the Indian Evidence Act will be kept in view. On remand, the lower appellate Court has reached the conclusion that a scrutiny of the oral evidence adduced on behalf of the plaintiff on the question of her parentage disclosed that it fulfilled the requirements of Section 50, Evidence Act, and was, accordingly, admissible. In regard to Ext. 1, a rent receipt of 1359 Fasli which described the plaintiff as a daughter of Sheikh Mahbub and which was also challenged as inadmissible, the Court below has held that it was covered by both Sections 11 and 13 of the Evidence Act and was, therefore, good evidence. The Court of appeal below has found for the plaintiff on the question of her parentage on the basis of the testimonies of P.Ws. 1, 2, 3, 5 and 6 and on Ext. 1 and on certain relevant circumstances. It has also found for the plaintiff on the question of her possession and dispossession as alleged by her and has held that the defendants' case of title to and possession over any portion of the suit lands was not at all established. On those findings, the defendants' appeal before the lower appellate Court has failed and the suit has been decreed. Hence, the present appeal by the defendants.
5. On behalf of the appellants, it has been contended that the testimony of none of the aforesaid witnesses, examined on behalf of the plaintiff, fell within the purview of Section 50 of the Evidence Act, and the Court of appeal below was in error in admitting and accepting that evidence or any part thereof; according to the learned counsel for the appellants, the whole of it was hearsay, pure and simple. Ext. 1 has also been attached as inadmissible, and it has been urged that neither Section 11 nor Section 13 of the Evidence Act covered the said document Thus, the first question for consideration is if the testimonies of the witnesses, mentioned above, or of any of them was admissible within the meaning of Section 50 of the Evidence Act. It cannot be disputed that if it is field that the testimonials or no part of them were admissible within the meaning of Section 50 of the Evidence Act, one of the basis for the finding that the plaintiff was the daughter of Sheikh Mahbub will disappear.
6. In a recent decision of the Supreme Court in Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914, Das, J. as he then was alter reviewing the relevant provisions of the Indian Evidence Act including Section 50 thereof, observed as follows:
"On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the Section. It appears to us that the essential requirements of the section are -- (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person, whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the 'belief or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal v. Bibi Khatemonnessa, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80):
"it is only 'opinion as expressed by conduct' which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question, in order' to enable the Court to infer 'the opinion, the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum' -- as to the relationship in question. We also accept as correct the view that Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship; Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201". Further, his Lordship dealing with the question as to how the conduct or external behaviour which expresses the opinion of a person corning within the meaning of Section 50 is to be proved made the following observations:
"If we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each casa direct within the meaning of Section 60. This, in our opinion, is the true inter-relation between Section 50 and Section 60 of the Evidence Act."
The plaintiff has examined six witnesses on her behalf. The relevant portions of their testimonies have ,been placed before me. I find that P.Ws. 1, 2, 3, 5 and 6 are all co-villagers of the plaintiff; P.Ws. 1, 3 and 6 being her castemen as well. P. W. 4, though a resident of a neighbouring village, claims to have his own land adjacent to one of the plots in suit. While P.Ws. 1, 2 and 3 claim to have seen only the plaintiff's mother and the plaintiff. P.Ws. 4, 5 and 6 claim to have seen Sheikh Mahbub as well. In the circumstances, I am of the opinion that the Court of appeal has rightly held that all these witnesses could reasonably be expected to have had enough opportunities to observe for themselves the conduct or outward behaviour of either Sheikh Mahbub himself or a) least of his widow with or in relation to the plaintiff, and they were quite clearly competent to testify to that conduct or outward behaviour. As has been pointed out by the Supreme Court in the decision referred to above, "conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other persons acquainted with the facts which express such opinion". In the present case, the witnesses being co-villagers and some of them being castemen and neighbours, having in soma cases at least lived in the same village and in the sama neighbourhood since the life time of Sheikh Mahbub can easily be held to be persons "acquainted with the facts which express such opinion". It may be mentioned that the Court below has rightly pointed out that though it was the definite case of the plaintiff that she was the daughter of Mt. Batahia, widow of Sheikh Mahbub, and it was so stated by the plaintiffs' witnesses, it was not suggested to any of those witnesses that Mt. Batahia was not the mother of the plaintiff or that she was not the widow of Sheikh Mahbub. Indeed, D.W. 6 has admitted, contrary to the case of the defendants that Sheikh Mahbub died leaving no heir and consequently his lands were treated as abandoned by the landlord who took possession thereof, that Sheikh Mahbub died leaving his widow and that his widow remained in possession of his properties during her life time. The items of conduct let into evidence fn the present case assume importance on the footing that Sheikh Mahbub died leaving his widow who could be none else than Most. Batahia whom the plaintiff claimed as her mother. It was, however, urged on behalf of the appellants that in fact none of the witnesses examined on behalf of the plaintiff have given any evidence of any conduct on their part or on the part of the alleged family members of the plaintiff. In my opinion, this contention is not well founded. It appears from the statements made by these witnesses that they have testified to the conduct of Mt. Batahia living and being jointly in possession of the suit lands with the plaintiff. This conduct alone, keeping the conditions of life in a village in mind, was "of a tenor which cannot well be supposed to have been willed without the inner existence of the opinion", and it was therefore for the Court of fact to weigh such evidence and come to its own opinion as to the relationship in question. Moreover, I find that P. Ws. 2, 4, 5 and 6, all competent witnesses, have testified to the devolution of Sheikh Mahbub's properties upon Sheikh Mahbub's death, first, to Mt. Batahia, who as has been pointed out by the Court below on the defendants' own showing could be none else than the widow of Sheikh Mahbub and to the plaintiff jointly, and, thereafter to the plaintiff alone upon the death of Most. Batahia about 12 yaars before the institution of the suit. It can hardly be disputed that devolution of family property is often a very valuable evidence of conduct within the meaning of Section 50 of the Evidence Act (see Seshammai v. Kuppanaiyyangar, AIR 1926 Mad 475). Both these items of conduct have been therefore, proved by the testimonies of the witnesses examined on behalf of the plaintiff, and in my opinion, the testimonies in question have been correctly, held by the Court below to have fulfilled the requirements of Section 50, Evidence Act, and were as such admissible. It is not necessary, as was held in Natabar Parichha v. Nimal Charan Misra, AIR 1952 Orissa 75 that in every instance where a witness proves relationship, he must also prove exhaustively all the instances of family conduct in support of that relationship. The quantum of evidence must necessarily vary with the facts of each case. Accordingly, I hold that the learned Additional Subordinate Judge was fully justified in taking the testimonies of P.Ws. 1, 2, 3, 5 and 6 into consideration on the question of the parentage of the plaintiff.
7. It is next urged that the lower appellate Court acted erroneously in holding that Ext. 1 was covered by Sections 11 and 13 of the Evidence Act. Ext 1 is a rent receipt for the year 1359 Fs in respect of the lands in suit and purports to have been granted by one Ramiakhan Missar, who, according to the evidence of P.W. 6 who has proved Ext. 1, was the landlord of the khata in question. In column 4 of this receipt, the plaintiff is described as the daughter of Sheikh Mahbub. The question is whether this statement in Ext. 1 is covered by Sec. 11 or Sec. 13 of the Evidence Act. There is nothing in the evidence of P. W. 6 or in the evidence of any other witnesses examined on behalf of the plaintiff that Ramiakhan Misser, the person who is alleged to have granted the aforesaid receipt was dead. Indeed, the same Ramlakhan Misser appears to have granted the other receipts viz. Exts. 1(a) to 1(c); Ext. 1(c) purports to have been granted on the 30th Bhado 1362, Fasli corresponding to the 2nd September, 1955. The suit was filed on the 29th June 1955. In the circumstances, the presumption will be that Ramiakhan Missir was alive. There is no explanation on behalf of the plaintiff for his non-examination. The condition required in the opening portion of Sec. 32 of the Evidence Act, even if it be assumed that the person making the statement had special means of knowledge and that the statement was made before the question in dispute was raised, remains unfulfilled, and, accordingly the statement will not be admissible under Section 32 at all. In Mt. Naima Khatun v. Basant Singh, AIR 1934 All 406 (FB) it was held as follows:
"It is however clear that if a statement does not fall within Section 32, it could not be admissible under Section 11 of that Act; Vela Ram v. Mahabir Singh, ILR 34 All 341 :14 Ind Cas 116 and Munna Lal v. Kameshari Dat, AIR 1929 Oudh 113. Obviously there is a difference between the existence of a fact and a statement as to its existence. Section 11 makes the existence of facts admissible and not statements as to such existence, unless of course the fact of making that statement is itself a matter in issue."
Similar view was expressed by Varadachariar, J. in Sevugan Chettiar v. Muthu Vijava Raghunatha Doraisingam, AIR 1940 Mad 273 at page 278; his Lordship, after having held that the documents in question were neither admissible under Clause (4) or Clause (3) of Section 32 of the Evidence Act, proceeded to observe as follows:
"As regards Section 11 it seems to us that Section 11 must be read subject to the other provisions of that Act and that a statement not satisfying the conditions laid down in Sec. 32 cannot be admitted merely on the ground that, if admitted, it may probabilize or improbabilize a fact in issue or a relevant fact."
The statement in Ext. 1, therefore, not being admissible under Section 32, cannot be held to be relevant under Section 11 of the Evidence Act. In regard to Section 13, it may be sufficient to point out that Sec. 13 makes relevant only certain transactions and instances for the purposes of establishing the existence of any right or custom; and, the determination of an alleged relationship between two persons, in this case between the plaintiff and Sheikh Mahbub was neither a question of any right nor of custom. Moreover it is difficult to read in Ext. 1 any assertion by the plaintiff of her right for mutation as an heir of Sheikh Mahbub. I am accordingly, of the opinion that the statement contained in Ext. 1 sought to be relied on by the plaintiff, is not covered under Sections 11 and 13 of the Evidence Act, and it should, therefore, be excluded from consideration.
8. The finding of the lower appellate Court to the effect that the plaintiff was a daughter of Sheikh Mahbub is, as pointed out above, based on the testimonies of P.Ws. 1 to 6, Ext. 1 and certain circumstances as well. I have already held that the testimonies of P.Ws. 1 to 6 on the question of the plaintiffs' parentage fulfil the requirement of Section 50 of the Evidence Act. It cannot be gainsaid that the circumstances alluded to by the Court of appeal below have a bearing on the question of the plaintiff's parentage, though an indirect one. In the circumstances, even if Ext. 1 is excluded from consideration, the finding of the plaintiff's parentage must be held to be well-founded on the residue of the evidence on the record. The other findings reached by the Court of appeal below relate to the plaintiff's case of possession and dispossession. The trial Court as well as the lower appellate Court have concurred in finding that the plaintiff had succeeded in establishing her possession over the suit lands within twelve years of the institution of the suit, and her case about the1 date and the manner of her dispossession was true. These findings are based on the relevant materials on the record, and indeed they have not been subjected to any challenge on behalf of the appellants. In the result, the plaintiff having established her title to the suit land being the daughter of the recorded tenant, Sheikh Mahbub, as also her possession over the same within twelve years of the institution of the suit was rightly been held entitled to recover possession from the defendants with mesne profits, and on the view I have taken of the evidence adduced on the question of the plaintiff's parentage the judgment and decree passed by the Court of appeal below decreeing the plaintiffs suit must be confirmed.
9. Mr. Sarwar All, learned counsel appearing for the plaintiff-respondent, has however, sought to support the decree on the ground of the plaintiff's possessory title as well. It will be noticed that the suit was resisted by the defendants not only on the ground that the suit was barred by limitation and that the plaintiff was not the daughter of Sheikh Mahbub who had died issueless, but also on the ground that they had title in themselves to at least 1 bigha 8 kathas out of the suit lands on the basis of a registered sale deed dated the 15th December, 1916, from Ramzan Mian and Zahoor Mian, two of the alleged settlees from the landlord, who according to the defendants, had taken possession of the whole of the lands of Khata No. 79, to which the suit lands appertained on Sheikh Mahbub's dying issueless. The defendants further claimed possession of the land purchased by them ever since the date of the purchase. The lower appellate Court has carefully examined both the oral and the documentary evidence adduced on behalf of the defendants in support of their case of title and possession and has come to a finding that the defendants have failed to establish any title or possession at any time in respect of the suit lands. It has commented upon the defendant's failure to get their alleged sale deed dated the 15th December, 1916, exhibited and has discarded Exts. B series, the rent receipts, adduced on their behalf in support of their case of possession as fabricated documents. It has referred to other documentary evidence in details and has held that they are of no assistance to the defendants. On these findings, it is contended by Mr. Sarwar Ali that apart from any other ground, the plaintiff in the present suit was entitled to succeed on her possessory title as well. Reliance has been placed on two Bench decisions of this Court, one reported in Govind Dutta v. Jagnarain Dutta, AIR 1952 Pat 314 and the other in Raju Roy v. Kasinath Roy, AIR 1956 Pat 308. In the former case Ramaswami J., as he then was, upon a review of both English and Indian cases on the point, held that possession was good title against all but 'the true owner and a person in peaceful possession of land has, as against every one but the true owner, an interest capable of being inherited, devised or conveyed, and applying that principle to the facts of that case, which was more or less similar to the present case, decreed the plaintiffs suit instituted for declaration of title and recovery of possession even though the gift under which the plaintiff claimed title being unregistered conferred no title on the plaintiff. In Raju Roy's case reported in AIR 1956 Pat 308, the plaintiff as well as the defendants claimed under respective sada hukumnamas settlement of Dighi Goria tank which was admitted to be one for non-agricultural purposes. Admittedly, the leases were unregistered and consequently they were void and legally ineffective to convey any title to or create any right under the leases in respect of the tank, in the circumstances, both the plaintiffs as well as the defendants were at the inception without any title to the tank and were in the eye of law trespassers. On those facts, their Lordships made the following significant observations:
"Assuming that the plaintiffs were trespassers in the same way as the defendants, there is a consensus of judicial opinion that a trespasser in possession can maintain a suit for; recovery of possession if dispossessed by another trespasser. Possession is prima facie a proof of title and a previous possession, though without title, will constitute a good foundation for a suit in ejectment against a person who is equally a trespasser and has no better title to the disputed property. In the case of Bodha Ganderi v. Ashloke Singh, AIR 1927 Pat 1 Dawson Miller C. J. observed as follows:
"As between two persons who are unable to make out a valid title one is in possession and has been in possession for several years. He is suddenly dispossessed by another who had no better title than the person whom he dispossesses, in fact he has no title at all. In the circumstances it seems to me that the plaintiff is entitled to be restored to possession of this tree.
The defendants had no right whatever to dispossess him and, if they do, whatever may be his title he clearly can seek the aid of the Court to be put back in such possession as he had, before being dispossessed by those who had no title."
See also Akal Ahir v. Baijnath Das, AIR 1924 Pat 709; Lilku Mahto v. Amar Mahto, AIR 1936 Pat 602; Shivsaran v. Sukhdeo Rai, AIR 1937 Pat 413 and Subodh Gopal v. Province of Bihar, AIR 1950 Pat 222. From this point or view also, the defendants cannot successfully resist the plaintiffs' suit for possession as they have not established a better title to the disputed tank."
In the present case, I have already held that the plaintiff is entitled to succeed as she has been able to establish her title and possession within twelve years of the suit. Assuming, however, that the oral evidence adduced on behalf of the plaintiff on the question of her parentage were to be wholly discarded as inadmissible for not having fulfilled the requirements of Section 50 of the Evidence Act and Ext. 1 having been already held to be of no assistance to the plaintiff and the residue of the evidence afforded by the various circumstances, alluded to by the Court of appeal below, did not justify the finding that the plaintiff was the daughter of the recorded tenant, Sheikh Mahbub I am of the opinion that the principles enunciated in the two cases referred to above, the plaintiff was entitled to succeed in the present suit for ejectment as against the defendants who themselves had no title at all to the lands in suit nor were they in possession at any time before they forcibly dispossessed the plaintiff on the 15th November, 1955.
10. In the result, the appeal fails and is dismissed with costs.