Bankey Behary Lal and Others vs Gudo Choudhury

Chatterji, J.—The suit which has given rise to this appeal relates to six cottas of land out of a big plot (survey plot No. 902) recorded as gair mazrua malik in the cadastral survey Record-of-Rights finally published in 1900. The village Jalalpur in which the land in dispute is situated had been leased out to Keota Factory from a long time until 1920 when the lease terminated. The plaintiff''s case is that after the expiry of the thicca the disputed land was in their cultivating possession as malik; but that in December 1904, the defendant forcibly removed the paddy crops from it. This was followed by a criminal case which has ended in the defendant''s favour. It is alleged that the defendant has absolutely no title whatsoever to the disputed land and that the plaintiffs are entitled to recover possession thereof.

The case for the defendant is that the whole of the disputed land formed part of his tenancy and that the plaintiffs'' predecessor-in-interest obtained a rent decree against his ancestor in 1895 and treated this as a part of his raiyati land.

The lower Court dismissed the suit on the ground that the plaintiffs failed to prove their possession within 12 years before the institution of the suit. The learned District Judge in appeal has found that the suit of 1895 related to the eastern three cottas out of the disputed land and that the plaintiff has a subsisting tenancy right therein. As to the remaining 3 cottas of the disputed land he holds that the defendant''s possession:

is due to an encroachment towards the west, in the malik''s patti lands.

He states, however, that:

There is no evidence to show when this encroachment was made except that it must have been subsequent to the khatian which was finally published on 10th February 1900;

but he has dismissed the claim thereto on the ground that the plaintiffs cannot succeed inasmuch as they have brought the suit on the basis of dispossession after the expiry of the lease and not on the basis of an encroachment during the period of the lease.

It is contended by the learned advocate appearing on behalf of the plaintiff appellant that on the findings of fact of the learned District Judge he ought to have awarded a decree with respect to the western three cottas of the disputed land; and reliance is placed on Nabadwipendra Mookerji v. Madhusudan [1912] 16 I.C. 741, whiten has been followed in several other cases. Although the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case made thereby, it does not follow from this that every variance between pleading and proof is material; and justifies a dismissal of the claim. A reference may be made to the following observations of their Lordships in the said case:

The particular mode in which the ouster of the plaintiff took place, or the specific point of time when it happened, is really not material. The plaintiff has to prove his title first, if he does so, he has further to prove his possession within 12 years prior to the suit: on what precise date, with in this 12 years, he lost possession, is not a matter of consequence.

I am unable to agree with the view taken by the learned District Judge that because the cause of action alleged in the plaint is dispossession after the expiry of the lease the plaintiff cannot succeed when he comes to the view that this portion was encroached upon by the defendant during the currency of the this lease. There is no dispute that the lease in favour of Keota Factory has been in existence from before the survey. Possession taken by a trespasser daring the currency of an ijara lease does not become adverse to the zamindar until upon expiration of the term, and a suit for possession may be brought within twelve years of that date. Sharat Sundari v. Bhobo Pershad [1886] 13 Cal. 101 and Gossain Mahendra Gir v. Rajani Kant Das 1 C.W.N. 246.

This is on the evident principle that the zamindar was in, possession of the entire property by receipt of rent from the thiccadar. In fact the learned District Judge concedes in his judgment that

the possession of the defendant could only become adverse to the plaintiffs after the expiry of the lease in 1920 and therefore the plaintiffs'' suit being within 12 years of the expiry of the lease was in time;

but as I have already mentioned, ho erroneously thought that this position was not open to the plaintiffs inasmuch as they had brought the suit on the basis of dispossession alleged to have taken place after the expiry of the lease. The plaintiffs are admittedly the proprietors of the village, and the-defendant has failed to prove that he is entitled to hold this western half of the disputed land in derogation of the plaintiffs'' title either by proof of a tenancy right or by acquisition of any such right by adverse possession. Such being the case the plaintiffs are, in my opinion, entitled to a decree with regard to this portion of the disputed land.

The ordinary principle that the plaintiff must prove possession within 12 years cannot apply to the facts and circumstances of the present case, because, firstly, the land is unculturable and could not have been possessed in the ordinary course; secondly, the plaintiff had no right to taka possession because of the currency of the lease of the thiccadar; and thirdly, the plaintiffs cannot be deemed to have been out of possession when they were receiving rent from the thiccadar for the entire mauza; lastly, it is for the defendant claiming a right of tenancy to establish an adverse possession for the statutory period of 12 years and this they have not succeeded in proving as follows from the learned District Judge''s finding.

As regards the eastern three cottas the learned District Judge finds title in favour of the defendant as a tenant of the land on the basis of the rent suit of 1895. He also finds that the defendant was not in possession at the time of the survey in 1900, but that he recovered possession some time between the survey and the expiry of the lease of the factory in 1920. It is contended on behalf of the appellant that the defendant''s title found in 1895 on the basis of the rent suit must be deemed to have been extinguished by operation of law in 1900 when the land came to be recorded in the Record-of-Rights as gair mazrua land of the landlord.

This argument is based on the contention that it was the duty of the defendant to bring a suit for possession under Article 3, Schedule 3, Ben. Ten. Act within two years of his dispossession, and this not having bean done there has been extinction of his title in favour of the plaintiffs. This argument is, in my opinion, a fallacious one. In order to attract the special provision of the Bengal Tenancy Act the dispossession must be by the landlord. The mere fact that the land stood recorded in the gair mazrua khata of the landlord does not show that the tenant had been dispossessed by the landlord. The entry in the Record-of-Rights neither creates nor extinguishes rights: Brij Behari v. Sheosankar [1916] 2 P.L.J. 124. There can be no legal inference from this entry that the defendant was dispossessed by the landlord. In the next place the piece of land having been waste and not capabla of enjoyment no question of adverse possession will coma in on the settled principle that possession follows title in respect of such lands. It may be mentioned here that there is no specific allegation in the plaint that the defendant''s title to this piece of land has bean barred by adverse possession. Lastly the defendant is now found in possession and, according to the finding of the learned District Judge, did recover possession of the land after the survey; so if the defendant succeeded in recovering possession without having recourse to a suit I am unable to see why his title will be affected by the operation of the special period of limitation provided for in the Bengal Tenancy Act. Even if it be assumed that dispossession had been caused by the landlord a suit could have been instituted within two years; and there is nothing to show that the defendant did not get back possession within two years of his having lost it. In my opinion, therefore, the learned District Judge was perfectly justified in holding that the defendant has got a subsisting title to this piece of land.

The case of Nand Kumar v. Ajodhya [1911] 11 I.C.465 is relied on in support of the proposition that the title of a tenant who does not bring a suit under Article 3, Schedule 3, Ben. Ten. Act, is extinguished by the operation of law. There is no allegation and no finding that the tenant was dispossessed by the landlord and that his period of dispossession lasted for two years. Hence this case has no application to the facts of the present case. Besides, Section 28, Lim. Act, provides that at the determination of the period limited by the said Act to any person for instituting a suit for any property, his right to such property shall be extinguished. Section 185, Ben. Ten. Act, merely provides that subject to the provisions of Chap. 16 the provisions of the Limitation Act shall apply to all suits mentioned in the foregoing section. It may, therefore, be said that this does not mean that in the absence of an express provision to that effect in the Bengal Tenancy Act, on the determination of the period of limitation prescribed by the Bengal Tenancy Act, the right to the title of property will also be extinguished. However, it is unnecessary to pursue the point further in this case, because the authority cited is distinguishable from the facts of the present case.

In the result the appeal succeeds with regard to the western half of the disputed six cottas and must fail as regards the eastern half. The plaintiff shall recover possession of the western half of the disputed land. As both the parties succeed and fail in part, each party shall, in the circumstances, bear its costs throughout.

Courtney-Terrell, C.J.

I agree.