Bhikhan Qassab vs Sheikh Mardan Ali

Das, J.—This appeal arises out of a suit brought by the respondent for ejectment of the appellant from the land in dispute by demolishing the house, which, it is alleged, the appellant has erected on that land.

The plaintiff''s case is that the land in dispute is included in Survey Plot No. 2815, which the plaintiff purchased from one Kaburuddin in 1907. He alleges that the defendant dispossessed him from the same in Baisakh 1319 by erecting a house on that land. The defence is that the land in dispute does not form part of Survey Plot No. 2815 and that it did not belong to the plaintiff''s predecessor-in interest and does not belong to the plaintiff. Alternatively, the defence urges that the defendant erected the house 18 or 19 years ago and that he has been in possession thereof ever since and that the plaintiff''s suit is barred by limitation.

The lower Appellate Court has come to the conclusion that the plaintiff has proved his title to 1 cottah 12 1/2 dhurs of land within the land in suit. It has come to this conclusion on a review of all oral and documentary evidence in the case, including the Kobala, Khatian and the Commissioner''s report. In my opinion, the finding of the lower Appellate Court on this point is a finding of fact and is binding on me in second appeal.

There, however, remains the question of limitation which the defendant specifically raised. His case is, as I have stated before, that he built this house 18 or 19 years ago and that he remained in possession thereof ever since. The plaintiff, on the other hand;, says that the defendant built this house in Baisakh 1319. It is, therefore, admitted that the defendant ousted the plaintiff by building a house on the land. It is, in my opinion, therefore, of vital importance to determine when the house was actually built by the defendant. If the defendant''s case be true on this point, then it is obvious that the plaintiff has not been in possession of a portion of the land in dispute within 12 years of the date of suit and his action must consequently fail. If, on the other hand, the plaintiff''s case be true on this point, then he is entitled to succeed in this action to the extent of 1 cottah 12 1/2 dhurs of land.

The Court of first instance pursued this method of enquiry and in a careful judgment, which has impressed me considerably, came to the conclusion that the defendant built this house 18 or 19 years ago and that he has been in possession of the land in dispute ever since.

The lower Appellate Court has, however, pursued another method altogether. It found that Survey Plot No. 2815, in which according to the finding of the lower Appellate Court 1 cottah 12 1/2 dhurs of the land in dispute falls, is shown in the Record of Bights as in the possession of the plaintiffs predecessor-in-interest. Having found that as a fact, it laid down as a proposition of law that the plaintiff''s possession must be presumed to continue until the date which the plaintiff gives in the plaint as the date of dispossession, unless the defendant can establish that he has acquired a title by adverse possession. The line of reasoning, so far as I have been able to understand the judgment of the lower Appellate Court, is this: The Record of Rights was finally published on 8th March 1898. It records that the plaintiff''s predecessor-in. interest was on that date in possession of the land. Therefore, the Court is bound to presume that the plaintiff''s predecessor-in interest was in fact in possession of the land in dispute on the 8th March 1898. Therefore, the Court must further presume that the plaintiff''s predecessor-in-interest and after him the plaintiff continued to remain in possession of the land until the date which ha gives in his plaint as the date of his dispossessions In my opinion this argument is a fallacious one. It must be remembered that the Record of Rights is merely an item of evidence, though an item of evidence which must be presumed to be correct until the contrary is shown, Supposing the plaintiff had in this case proved by evidence which the Court accepted as conclusive that he was in possession of the land in dispute on the 8th March 1898, would the Court than be entitled to say "I shall now presume that the plaintiff continued to be in possession until the date which the plaintiff gives in his plaint as the date of dispossession, unless the defendant establishes that he has acquired a title by adverse possession?" '' It seems to me that the proposition has only to be stated to be rejected. A long series of oases have established that when a plaintiff brings a suit for possession on the allegation that while in possession he was dispossessed by the defendant), he must show when exactly he was dispossessed and he must bring his suit within 12 years of the date of dispossession. But according to the lower Appellate Court all that the plaintiff need show is that some time or other he was in possession of the land in dispute. As soon as he has shown that sometime or other he was in possession of the land in dispute, the Court will presume in his favour that he continued to be in possession of the land in dispute until the date which he gives in his plaint as the date of dispossession. In my opinion the Record of Rights does not stand on any better footing than any other piece of evidence which may be accepted by the Court, and the acceptance of the proposition that has been urged before me by the learned Vakil appearing on behalf of the respondent will, in my opinion, inevitably do away with the distinction between Articles 142 and 144 of the Limitation Act. But I must confess that I cannot distinguish the case of Barkat Ali v. Basant Nunia 39 Ind. Cas. 356 : 21 C.W.N. 175 which has been relied on by the lower Appellate Court. I have the greatest respect for the learned Judges who decided that case and, sitting as a single Judge, I feel that I can-not dissent from that decision. I will, therefore, approach this case from the point of view that the defendant has to establish that he has acquired a title by adverse possession.

Now, the defendant undoubtedly did attempt to prove his title by adverse possession, and the Court of first instance found that the defendant has been in possession of the property for 18 or 19 years. The defendant first of all relied upon the sale-deed in favour of the plaintiff, which shows that the southern boundary of the land purchased by the plaintiff is the house of the defendant. Therefore, it appears from the plaintiff''s sale-deed itself that the defendant had a house to the south of the land purchased by the plaintiff, at any rate on the 22nd January 1907, which is the date of. the plaintiff''s sale-deed. But the plaintiff''s case is that the defendant had another house to the south of the land purchased by him on the 22nd January 1907 and that the defendant built this house, which stands on, the land in dispute, in April 1912, Therefore, unless the plaintiff can establish that the defendant had some other house to the south of the land purchased by him, it must follow that the plaintiff''s case that the defendant built this house in April 1912 must be untrue. The plaintiff did attempt to prove that the defendant had another house in April 1912 to the south of the land purchased by him, a case which was found to be false by the Court of first instance. It was, of course, open to the lower Appellate Court to disagree with the Court of first instance on this point, but as I read the judgment of the lower Appellate Court, it has not attempted to discuss this matter at all. I think it was essentially necessary for the lower Appellate Court to deal with this matter and the failure to do so, in my opinion, vitiates its judgment. The defendant says very distinctly: "I built this house on the land in dispute 18 or 19 years ago and I have been in possession of it ever since." The plaintiff''s Kobala on the face of it shows that the defendant had a house to the south of the land purchased by the plaintiff. The plaintiff makes a case that the defendant had another house to the south of the land purchased by him and that the house which now stands on the land in dispute was built by the defendant in April 1912. Therefore, in my opinion, the Court was bound to determine this point, especially as the Court of first instance had dealt with this point exhaustively.

The defendant next relies upon a Kobala of 1897. The lower Appellate Court dismissed this document entirely from its consideration, on the ground that the Record of Rights was prepared subsequently to the execution of this document. It was for the lower Appellate Court to attach whatever Weight it thought proper to this Kobala, but, in my opinion, it was bound to take this document into consideration in considering whether the presumption afforded by the Record of Bights has or has not been rebutted. The lower Appellate Court erroneously thought that evidence of a date prior to that of the publication of the Record of Rights is inadmissible and cannot be taken into consideration by any Court, but it has been held that events or facts, both documentary and oral, of a date prior to that of the publication of the record are admissible and should be weighed in determining whether the presumption has been rebutted: see the case of Sheonandan Persad Sukul v. Bacha Raut 4 Ind. Cas. 54 : 9 C.L.T 284, which has been followed in this Court in Anand Ram Marwari v. Dhanpat Singh 38 Ind. Cas. 37 : 1 P.L.J. 563 : 2 P.L.W. 341. If the lower Appellate Court had considered this document, this Court could not have interfered with its estimate of that document, but the complaint of the appellant is that it has entirely dismissed this document from its consideration. I am of opinion that the lower Appellate Court erred in not taking this document into its consideration at all.

The appellant next relies upon certain Chaukidari receipts as showing that he has been in possession of this house for a number of years. The lower Appellate Court says that these receipts do not identify the house with the house built on the land in dispute. It is the defendant''s case that these Chaukidari receipts are in respect of the house which he built on the land in dispute 18 or 19 years ago. It is apparently to meet this case that the plaintiff introduced the story that the defendant had another house to the south of the land purchased by him in 1907, a case which the Court of first instance disbelieved. As I have said before, it was open to the lower Appellate Court to disagree with the Court of first instance on this point but it has not done so, and in my view it was not open to the lower Appellate Court to dismiss these receipts from its consideration without first displacing the finding of the Court of first instance on this point.

Lastly the appellant relied upon oral evidence adduced by the appellant in the case. The Court of first instance discussed this evidence very fully and relied on it. It was, of course, open to the lower Appellate Court to say that it did not believe in that evidence, but it was at least incumbent on the lower Appellate Court to deal with this evidence, specially as the Court of first instance had relied on it and when the lower Appellate Court was setting aside the judgment and the decree of the Court of first instance.

In my view, therefore, the lower Appellate Court has erred both in law and in procedure: in law in that it thought that evidence of a date prior to that of the publication of the Record of Rights was not admissible in evidence and could not be taken into consideration by a Court dealing with the case and could not be weighed in determining whether the presumption of the Record of Rights has been rebutted; in procedure in that it failed to determine the critical question between the parties, namely, whether the defendant had a house to the south of the land purchased by the plaintiff other than the house which the defendant has erected on a portion of the land in dispute; also in that it failed to consider the oral evidence adduced on behalf of the appellant. The error of procedure, in my opinion, is a substantial One, for it is obvious that if the lower Appellate Court comes to the conclusion that the defendant had no other house but the house now standing on a portion of the land, the plaintiff''s sale deed as well as the Chaukidari receipts filed by the defendant may well turn the balance in favour of the defendant. I would, therefore, allow this appeal, set aside the judgment and decree of the lower Appellate Court and remand the case to the lower Appellate Court for decision according to law. The appellant will be entitled to the costs of this appeal. The costs incurred in the Courts below will abide the result and will be disposed of by the lower Appellate Court.