Arabinda Barma and Others vs Chandra Kanta

Sarjoo Prosad, C.J.—I am afraid, the decision of the learned Subordinate Judge has to be set aside and the case remanded to the Court of Appeal below for disposal according to law. The appeal has been preferred by Defendants 1-3 to the action which was in the nature of a suit for declaration of title and recovery of possession.

It is not seriously contested before me that Lalit had no right to mortgage the land in suit and that there was a good transfer made by Lalit in favour of the Plaintiff in 1921, and, as such, the Plaintiff had a good title to the land; but the main question which has been argued before me is the question of limitation.

The learned Subordinate Judge who disposed of the appeal found thus:

From the evidence and the circumstances, I agree with the finding of the learned Munsiff that the Plaintiff was in possession of the lands in suit through the mortgagee, Aditya, and that till Sravan, 1353 B.S. The claim, in my opinion is not, therefore, hit by Article 142, Limitation Act.

The suit itself was filed on 30-4-1947, and if this Lading is a good finding, then the suit is evidently within time because Article 142 obviously applies to the circumstances of this case. The possession of the Plaintiff through his mortgagee or ageni, Aditya, or other persons till Sravan 1353 B.S., which would correspond to some time in 1946 would be certainly within 12 years from the date of the suit. But there are two serious objections to this finding. Firstly, it does not appear that there has been any independent consideration of the evidence bearing on the point of Aditya''s possession or of persons claiming under Aditya who were said to be holding as agents or mortgagees (whatever the character of their possession may be) from the Plaintiff.

The trial Court has apparently discussed some of this evidence, but in the decision of the Appellate Court, there is no serious discussion of such evidence. The only thing to which reference has been made is the recital in Ex. B, the peon''s report. But this recital would not, by itself, be sufficient evidence of the possession of persons through whom the Plaintiff claims to (sic) in possesion, unless it is supported also by the other evidence on record. The learned Subordinate Judge, therefore, who was the final Court of facts, should have examined the evidence bearing on the point and then come to an independent finding whether the Plaintiff had proved his possession within 12 years of the date of the suit Possibly the decision of the learned Munsiff on that point may be correct. I have not examined the evidence myself, but it is the duty of the Appellate Court to examine the evidence independently and come to its own findings in agreement or otherwise with the finding of the trial Court. The other serious objection to this finding is that much of its value is lost by the subsequent finding in the judgment of the learned Subordinate Judge. I am doubtful if this latter finding can be said to be a true finding at all; but as it is, it does destroy much of the value of his previous finding. He observes:

Even assuming that everything up to their purchase is all right, it will be seen that they purchased the lands on 20-6-36 and possessed the same on and from that day.

The assumption that on and from the date of their purchase the Defendants were in possession, militates against the earlier finding of the learned Subordinate Judge that the Plaintiff was in possession till Sravan 1353 B.S. The learned Counsel for the Respondent urges that this is not really a finding at all, but the judgment shows that the learned Subordinate Judge appears to have acted upon the assumption. There may be evidence on behalf of the Defendants to support their possession, but it was for the learned Subordinate Judge to examine that evidence, whether ever since their purchase the Defendants were or were not in actual possession. I said, the finding on that point of limitation is not quite adequate in law.

The other contention of Mr. Ghose on behalf of the Appellants is that the learned Subordinate Judge has committed an error of law in observing that the Defendants were not entitled to tack the period of possession prior to their purchase. He rightly contends that if their vendor who got or alleged to have got delivery of possession in May, 1934, actually got possession of the land, then the Defendants claiming by virtue of a purchase through him would be entitled to tack the period of their vendor''s possession to that of their own. This proposition is very well established. See, for instance,--''Pandappa Mahalingappa v. Shivalingappa Murtoppa'' AIR 1946 Bom 193 (A)-- Paluru Ademma Vs. Achala Penchelu Reddi, --''Hukum Chand v. Raja Ran Bahadur Singh'' AIR 1919 Pat 146 (C)- Bibhuti Bhusan Modak and Another Vs. Girish Chandra Pal and Others, The Defendants were not claiming as independent trespassers that they should be deprived of the right to tack their vendor''s possession to their own. The learned Subordinate Judge, therefore, fell into error in holding that the Defendants could not tack the possession of their vendor to their own. But a case of adverse possession has to be established by the Defendants and the onus is strongly upon them to establish it. If it is found that there is no evidence in support of their actual possession or that of their vendor, the mere fact that they were mutated or that there was delivery of possession may not be enough; but all this has to be considered by the Court of fact before a finding is arrived at on the point.

There appears to be another error in the judgment of the learned Subordinate Judge which relates to a supposed finding of fraud. The learned Subordinate Judge has observed as follows:

Obviously Defendants knew of Plaintiff�s title and the subsequent transfers simply indicate an. act of fraud on their part most probably with a view to defeat the Plaintiff�s title.

In the first place, this is not a finding of fraud at all. The inference of fraud has to be drawn from positive materials on record, and it cannot be merely speculative. Even assuming that there was evidence of such a fraud, this would not be enough to dispose of the matter. Fraud on the part of the Defendants� will have to be connected with some fraud on the part of the mortgagee auction purchaser in order to defeat the Defendants. I do not find that there is any specific case on that point that the mortgagee himself participated in any such fraud and, as such, brought about the sale in question. I have al-ready observed that the case is governed by Article 142, Limitation Act and if the Plaintiff is able to prove possession within 12 years of the date of the suit, the Plaintiff would be entitled to succeed.

For the reasons stated above, the appeal is allowed and the case remanded costs to abide the result. The lower Appellate Court must examine the materials on record without being trammelled by any observations that. I may have made in regard to the possibility of the nature of the evidence.