Patna High Court
Ramjatan Singh And Ors. vs Tapesar Rout And Ors. on 28 May, 1956
Equivalent citations: AIR1956PAT533, AIR 1956 PATNA 533
JUDGMENT Sahai, J.
1. This appeal by the defendants first party arises out of a suit for declaration of title to and confirmation or, in the alternative, recovery of possession in respect of plot No. 2743 appertaining to Khata No. 165 with an area or 1 bigha 7 kathas 9 dhurs in village Dhorlahi Kaithal.
2. Shortly stated, the plaintiffs' case is that the land in suit was the kasht land of Dharichhan Singh (defendant 5) and the plaintiffs acquired it from him under two sale deeds dated 5-11-1947.
After their purchase, the plaintiffs came into possession of the land. The defendants first party began to interfere with their possession and a proceeding under Section 144, Criminal P. C. was drawn up. That proceeding was dropped, and, later, a proceeding under Section 107 of the same Code was drawn up. In that proceeding, the defendants first party falsely claimed to be in possession of the disputed land as Shikmidars from 1332 Fasli. The proceeding under Section 107 was dropped on 2-4-1949.
3. The case of the defendants first party is that the disputed land has been in their possession as Shikmidars from Baisakh 1332 Fasli on settlement by defendant 5. Hence the plaintiffs are not entitled to recover khas posssession of the land in suit.
4. The learned Munsiff, who tried the suit, held that the sale-deeds, on which the plaintiffs relied for acquisition of their title, were neither valid "nor for consideration. Hence he further held that the plaintiffs had no right, title or interest in the disputed land. He also held that the defendants first party were in possession of that land as Shikmidars from 1332 Fasli. On these findings, he dismissed the suit.
5. The plaintiffs' appeal was heard by the Subordinate Judge Second Court, Chapra. He held that the sale deeds, Exs. 3 and 3 (a) relied upon by the plaintiffs were genuine and for consideration. He further found that the defendant first party had failed to prove that the land in suit was in their possession continuously of a period of twelve years as Shikmidars. On these findings, he allowed the appeal and decreed the suit. The defendants first party have, therefore, filed this second appeal.
6. The findings of the learned Subordinate Judge are findings of fact and Mr. Lal Narayan Sinha, appearing on behalf of the appellants, has rightly not challenged them. The position, therefore, is that the plaintiffs have undoubtedly title to the land in suit and the defendants first party have failed to prove that they have, either by reason of settlement with them by defendant 5 or by reason of continuous possession for twelve years, acquired shikmi rights in the disputed land.
Mr. Lal Narayan Sinha has, however submitted that the case has to be remanded to the lower appellate Court because it has not given any finding as to whether the plaintiffs have or have not proved that they have subsisting title to the land. His argument is that Article 142, Limitation Act applies to this case and hence the lower appellate Court had to consider not only whether the plaintiffs had antecedent title to the disputed land but also whether they had subsisting title in the sense that they or their vendor were in possession of the land at any time within twelve years before the institution of the suit.
Appearing on behalf of the plaintiffs respondents, Mr. Sanyal has contended that Article 144, Limitation Act applies to this case and that, in any case, the applicants cannot raise the question of limitation at this stage in the circumstances of this case.
7. The first point which I propose to consider is whether Article 142 or Article 144 applies in this case. Article 142 applies when the plaintiff sues in ejectment on the allegation that, while he was in possession, he was dispossessed by the defendants or he discontinued his possession. In this case, the plaintiffs have not alleged that they have either been dispossessed or have discontinued possession of the disputed land. As I have already said, they have prayed for confirmation of possession or, in the alternative, recovery of possession.
A prayer for a relief of this kind, however, has been construed to be a prayer for recovery of possession. There can be no prayer for recovery of possession unless the plaintiff, either expressly or impliedly, alleges that he has been dispossessed. There was a similar prayer in the case of Chandiprasad v. Awadh Narain Jha, AIR 1952 Pat 143 (A). In that case, Sarjoo Prosad J. (as he then was) delivered the judgment and Das J. (as he then was) concurred. Sarjoo Prosad J. observed as follows:
"The present case is a case for declaration of title and confirmation of possession, in other words, for recovery of possession of the lands. Such a case comes under the specific provisions of Article 142, Limitation Act....."
8. In the Full Bench decision in the case of Siva Prasad Singh v. Hira Singh, 6 Pat LJ 478 : (AIR 1926 Pat 237 (B), which has been consistently followed in this Court, it has been held that the plaintiff, in a suit for ejectment, has to prove not only that he was title to the land but that he was in possession at. some time within twelve years before the institution of the suit or, in other words, Article 142 applies in such a case. Dawson Miller C.J. has observed in that decision as" follows:
"It has been argued, however, that in all cases where the defendant sets up a title by adverse possession, whether the suit is one based upon dispossession or not, the onus lies upon the defendant to prove his adverse possession for 12 years before the suit. In my view this is stating the legal proposition too broadly."
In support of the proposition referred to in the above quotation, reliance was placed before the Full Bench on the Privy Council decision in the case of Radha Gobind Roy y. Inglis, 7 Cal LR 364 (C). The land which was in question in Radha Gobind Roy's case (C) was covered with water and had recently become dry and culturable. With regard to that case, Dawson Miller C. J. observed, as follows:
"The correct view of Radha Gobind Roy's case (C) appears to me to be that the case was not one based upon a dispossession by the defendant of the land as such and there was no allegation that the plaintiff had ever been in actual possession of the land after it formed by the drying of the water. In other words the case was not one falling under Article 142, Limitation Act but under Article 144."
Mr. Sanyal has relied upon the decision of a Division Bench of this Court in M. A. Rauf v. Bodhi Singh, AIR 1950 Pat 484 (D). That was a case in which the plaintiff prayed for a declaration that the land in suit was his bakasht land and for recovery of possession by evicting the defendants. On the question of possession, the lower appellate Court had held that both parties had adduced unsatisfactory evidence. Ramaswami J. (as he then was) who delivered the judgment of the Bench, Sarjoo Prosad J. agreeing, observed as follows:--
"In the present case, the plaintiff would succeed, even if Article 142 is applicable. But the authorities establish that upon the pleadings of the case the appropriate provision would be Article 144 and the suit will not fail until the defendants establish adverse possession for the statutory period either of the entire or limited interest."
M.A. Rauf's case (D) came up for consideration in the case of Dhani Jha v. Mt. Dharohari Kuer, 1955 BLJR 202 (E). In that case, the defendants had failed to prove any title over plot No. 44 which was one of the plots in dispute and the plaintiffs had failed to prove their possession over that plot within twelve years of the suit. Belying upon file principle "that a landlord is entitled to recover possession over every bit of land situate within his za mindari unless the tenant-defendant in possession is in a position to establish a title to remain in occupation of the land".
the lower appellate Court decreed the plaintiffs' suit for declaration of their title and recovery of possession over plot No. 44. This decree was confirmed by a single Judge of this Court. The matter then came up before a Division Bench in Letters Patent appeal.
With reference to M. A. Rauf's case (p), Choudhary J. had observed that the proposition that Article 144 applied to the facts of that case appeared to the obiter because, according to the observations of Ramaswami J., the plaintiffs in that case would have succeeded even if Article 142 was applicable. While agreeing with Choudhury J., Das C.J. has, with reference to the observations of Ramaswami J. in Rauf's case (D) relating to the applicability of Article 144 to that case, observed as follows:
"In my opinion, these observations have to be understood with reference to the facts of the case, and at two places his Lordships emphasised the pleadings in the case and on those pleadings it was held that Article 142 did not apply".
He has concluded his judgment as follows: --
"As I have already said, Rauf's case (D) cannot & does not go behind the principles laid down in Shiv Prasad Singh v. Hira Singh (B). If, however, Rauf's case (p) is capable of being BO interpreted as to go behind the principle laid down in the Full Bench decision of Shiv Prasad Singh v. Hira Singh (B), then it is our clear duty to follow the Full Bench decision."
9. In the present case, the plaintiffs have instituted the suit for ejectment of the defendants first party. Their allegation is that they were in possession. Their prayer for confirmation of possession or, in the alternative, recovery of possession must be construed to be a prayer for recovery of possession on the allegation of possession. The decision in M. A, Rau's case (D) that Article 144 was applicable was arrived at on the basis of the pleadings in that case.
In view of the Pull Bench decision in Siva Prasad Singh's case (B) and the Division Bench decision in the case of Dhani Jha (E) and the observations made in Chandiprasad's case (A), it seems to me to be clear that Article 142, and not Article 144, applies to the facts of this case.
10. It is necessary to make another point clear. The plaintiffs have been found in this case to have title to ralyati interest in the disputed land. The defendants first party do not claim the whole of that interest. They merely claim to be shikmidars. If the plaintiffs fail to prove that they or their vendor, Dharichhan Singh (defendant 5), were in possession of the disputed land at any time within twelve years before the institution of the suit, their suit will have to be held to be barred only in a limited sense, viz., that they will not be held entitled to khas possession. Their raiyati interest and the right to receive rent from the defendants first party cannot be held to be barred.
This is clear from the case of Ishan Chandra Mitter v. Ramranjan Chakarbutty, 2 Cal LJ 125 (P) and the case of Mohan Bikram Shah v. Deo-narain, ILR 24 Pat 379 ; (AIR 1945 Pat 433) (G).
11. The next point which I have to consider is whether the appellants can be allowed to raise the question of limitation at this stage.
In this connection, it has to be remembered that Section 3, Limitation Act provides that a suit instituted after the expiry of the period of limitation shall be dismissed, although limitation has not been set up as a defence. In this case, the defendants first party did take the plea that the suit was barred by limitation. Mr. Sanyal has, however, pointed out that the third issue in the case was whether the suit was barred by limitation and, with reference to this issue, the learned Munsif has said as follows:
Issue No. 3.-- This issue was not pressed and so I do not consider it necessary to give a finding on the same."
He has contended on the basis of the observation of the learned Munsif that the plea of limitation was abandoned by the defendants first party. Hence they cannot be allowed to raise that plea in second appeal in this Court. This contention is attractive and I must say that I was first impressed by it. On further consideration, however, I nave come to the conclusion that there is no substance in the contention.
The defendants first party pleaded that the suit was barred by limitation and they went further by undertaking to prove that they were in possession as shikmidars from Baisakh 1332 Fasli. As they sought to prove at the trial that they were in possession of the disputed land for more than twelve years before the date of institution of the suit, their case even at the stage of trial must be held to be that the plaintiffs were not in possession during the statutory period of twelve years The Munsif held that the defendants first party had succeeded in proving that they were in possession from 1332 Fasli and that the plaintiffs had no title to the disputed land.
It was, therefore, unnecessary for him to consider whether the plaintiffs had succeeded in proving that they or their vendor were in possession at any time within twelve years before the institution of the suit. The defendants first party cannot, therefore, be held to have abandoned the plea that the suit was barred by limitation.
12. Mr. Sanyal has next urged that the defendants first party do not appear to have raised before the appellate Court the point that Article 142 was applicable to this case and the suit was barred by limitation by reason of the plaintiffs or their vendor not having proved that they were in possession of the disputed land within twelve years of the suit. This argument does not appear to be correct. The second point which the lower appellate Court has formulated for consideration is as follows:
"2. Are the plaintiffs entitled to recover khas possession of the suit land? In other words, can the defendants 1st party successfully resist the plaintiffs' claim for khas possession over the suit land on the ground of their being its shikmidars?"
If the second sentence had not been added, it would have been clear that the learned Subordinate Judge was proposing to consider whether or not the plaintiffs' prayer for khas possession was barred by limitation. The point of limitation may, therefore, have well been raised on behalf of the defendants first party before him. He appears to have added the second sentence because of the view of law which he appears to have taken. He has quoted Section 48A, Bihar Tenancy Act, the relevant parts of which runs as follows:
''Every person who, for a period of twelve years, whether wholly or partly, before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938, has continuously held land as an under-raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period:"
On the basis of this provision, he has held that the defandants first party could only succeed if they proved that they had continuously held the disputed land as an under-raiyat for a period of twelve years. When a shikmidar claims to have acquired occupancy right to a land, he has undoubtedly to prove that he has continuously held the land for a period of twelve years.
Where, however, a person, claiming to be a shikmidar, is found to be in possession and he is sued in ejectment on the allegation of the plaintiffs' possession and subsequent dispossession, the plaintiffs have to prove that they have been in khas possession at any time within twelve years before the institution of the suit. In the present case, therefore, the plaintiffs are not absolved from their liability to prove their possession within twelve years before the institution of the suit in spite of the fact that the defendants first party merely claim to be shikmidars and they have not proved that they were in possession of the disputed land for twelve years or more before the suit.
In this connection, I may refer to Dhani Jha's case (E) which I have already referred to. In that case, the plaintiff was the landlord and the defendants were tenants. The lower appellate Court applied the principle that the landlord was entitled to recover possession over every bit of land within his zamindari unless the tenants established a title to remain in possession.
This Court did not accept this principle and did not consider whether the tenants defendants had acquired any occupancy right or any other kind of right to remain in possession. As the plaintiff failed to prove that he was in possession within twelve years before the suit, the suit was dismissed. On the same basis, it is necessary for the plaintiffs or their vendor in the present case also to prove their possession within twelve years of the suit irrespective of the fact that the defendants first party have failed to prove that they have acquired occupancy right in the land by twelve years' continuous possession.
13. For the reasons given above, I am not satisfied that the plea of limitation was not raised in the lower appellate Court. It is, therefore necessary for the lower appellate Court to arrive at a finding on the question as to whether the plaintiffs or their vendor have or have not succeeded in establishing that they were in possession of the disputed land at any time within twelve years before the institution of the suit. If they have succeeded, the suit must be decreed.
If, on the other hand, it is found that the plaintiffs or their vendor have failed to establish that the plaintiffs have subsisting title by reason of they or their vendor having been in possession at any time within twelve years before the institution of the suit, the suit must be dismissed in so far as the prayer of khas possession is concerned.
14. The result is that I allow the appeal and remand the case to the lower appellate Court for reconsideration of the entire evidence and for a decision in accordance with law and in accordance with the observations made above after coming to a finding on the question which I have already mentioned. Costs will abide the result.