Patna High Court
Sasibala Dasi And Anr. vs Chandra Mohan Dutta And Anr. on 10 May, 1920
Equivalent citations: 56IND. CAS.937, AIR 1920 PATNA 275
JUDGMENT Sultan Ahmed, J.
1. This was a suit instituted by the plaintiffs for recovery of khas possession of the entire share of the properties mentioned in Schedules ka and ga and of half share of the property mentioned in Schedule kha, by ejecting defendant No. 1 who is in wrongful possession of the same, and for mesne profits and costs. The plaintiffs say that in 1902 plaintiff No. 1 instituted a suit for recovery of possession by metes and bounds of two-annas share in Mouzi Ranguni, alleging that the said two-annas share belonged to her husband Sristidhar and that she became entitled to it on the death of her husband. That suit was compromised and the property in suit was divided into three equal parts covered by Schedules ka, kha and ga and it was arranged that plaintiff No. I would get plot ka and that Sunaina and plaintiff No. 1 would get jointly the land of Schedule ga, and that Sunaina and Sumitra would get the kha lands for their maintenance. It was further agreed that on the death of Sunaina and Sumitra the plaintiff No. 1 would get the kha lands. Sunaina sometime after died. The plaintiff No. 1's Base is that she had been in possession until 1914, when she was dispossessed by virtue of the order of the Court giving possession to defendant No. 1. The trial Court gave a decree to the plaintiff, but on appeal the learned Subordinate Judge gave a decree for possession of the lands described in Schedules ka and ga in the plaint but dismissed her claim with respect to the possession of half of kha. The Subordinate Judge also reduced the amount of mesne profits to Rs. 200. In my opinion it is impossible to support the decision of the lower Appellate Court. The relevant portion of the compromise decree runs as follows: "Defendant No. 2 Srimaty Sunaina Dasi and the widow of late Prasanna Kumar Dubta will take into possession the lands of Schedule kha for maintenance for life. The defendants Nos. 1 and 3 will have no objection to this. After the death of bath of them the plaintiff will take possession of the lands, to which defendants Nos. 1 and 3 will have no objection" Upon a proper construction of this compromise the plaintiff No. 1 was, in my opinion, entitled to a moiety of the land of Schedule kha after the death of Sunaina. It is to be borne in mind that Schedule kha lands were given to Sunaina and Samitra as maintenance, and as such Schedule kha lands were enjoyed by them not as joint tenants bat as tenants in-common. The cases reported as Jogeswar Narain Deo v. Ram Chandra Dutt 23 C. 670 (P.C.) : 23 I.A. 37 : 7 Sar. P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445, Hirabai v. Lakshmibai 11 B. 573 : 6 Ind. Dec. (N.S.) 377 and Bai Diwali v. Patel Bechardas 26 B. 445 : 4 Bom.L.R. 102 are ample authorities for the view that I have taken. The learned Vakil for the respondents, however, has drawn my attention to the decision of the Privy Council in Narpat Singh v. Mahomed Ali 11 C. 1 : 4 Sar.P.C.J. 558 : Badque & Jackson's P.C.No. 82 : 5 Ind. Dec. (N.S.) 757. Before I deal with that case, it must be pointed out that property acquired under a grant from Government is undoubtedly self acquired, as was laid down in the Shivagunga's case [Katama Natchiar v. Rajah of Shivagunga 9 M.I.A. 539 at p. 610 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar.P.C.J. 25 : 19 E.R. 843 :, unless it is merely restoration of a confiscated grant intended for the benefit of the family. See Kedar Nath v. Ratan Singh 7 Ind. Cas. 648 : 32 A. 415 : 14 C.W.N. 985 : (1910) M.W.N. 311 : 8 M.L.T. 193 : 12 C.L.J. 226 : 12 Bom L.R. 656 : 13 O.C. 332 : 23 M.L.J. 900 : 37 I.A. 161 (P.C.). It will be noticed that the grant in the case of Narpat Singh v. Mahomed Ali 11 C. 1 : 4 Sar.P.C.J. 558 : Badque & Jackson's P.C.No. 82 : 5 Ind. Dec. (N.S.) 757 was merely restoration of confiscated property by the Government and the grant which was for the benefit of the family created a joint tenancy. It has also to be borne in mind that the grantor, that is, the Government, did not claim to resume the land. In my opinion, therefore, that case is not vary helpful in the determination of the present case. Apart from that, if it is true, as was pointed out in the case of Muthumeenakshi Ammal v. Chendra Sekhara Ayyar 27 M. 498, that there is not much distinction in principle between the judgment of the Privy Council in Narpat Singh v. Mahomed Ali 11 C. 1 : 4 Sar.P.C.J. 558 : Badque & Jackson's P.C.No. 82 : 5 Ind. Dec. (N.S.) 757 from that in Jogeswar Narain Deo v. Ram Chandra Dutt 23 C. 670 (P.C.) : 23 I.A. 37 : 7 Sar. P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445, then, as was held in that case, we are bound by the later decision of the Privy Council.
2. There are two other points on which the plaintiff, in my opinion, must succeed. It was distinctly alleged in the plaint that the plaintiff actually came into possession of half the kha lands on the death of Sunaina and this fast has not been controverted in the written statement. The plaintiff had been recorded in the landlord's Sherista. so the landlord obtained a decree of rent against her and in execution of the degree the land was put up for sale, and defendant No. 1 paid the amount and as such became the statutory usufructuary mortgagee under Section 6 of Regulation XX (1890) and actually got delivery of possession of the property on the 15th January 1914 by dispossessing the plaintiff. This right of the defendant to remain in possession exists only as long as Rs. 37 which he deposited in Court has not been paid off, and as it has been found by both Courts that more than Rs. 37 has been realised by him, he is not entitled to retain possession, vide Haradhan Mandal v. Iswar Das Marwari 38 Ind. Cas. 797 : 2 P.L.J. 61 : 3 P.L.W. 258 and Sahodra Kuer v. Gobardhan Tiwari 39 Ind. Cas. 458 : 2 P.L.J. 280 : 1 P.L.W. 327 : (1917) Pat. 164. There is absolutely no proof and no finding that the defendant No. 1. has better title than the plaintiff and, therefore, on the authorities quoted above the plaintiff is entitled to get back the possession of the property. From whatever view we look at the case of the plaintiff, in my opinion, she is entitled to recover khas possession of a moiety of the kha lands.
3. Whatever may be the position of Sumitra under the compromise, defendant No, 1 cannot succeed unless he shows a better title than that of the plaintiff. The contention that this being a suit in ejectment, the plaintiff must succeed on the strength of her own title, will be of no avail in a case like this, when the possession which the defendant has got is by virtue of an order of the Court and under which he is not entitled to retain possession after the Rs. 37 which he deposited had admittedly been paid off. This being my view of the care, I declare that the plaintiff is entitled to the possession of a moiety of the kha lands. As regards mesne profits this is a matter which will have to be enquired into afresh in the Court below, and I, therefore, allow this appeal with costs, leaving it to the lower Appellate Court to find out the amount of mesne profits.