Biswanath Bandapadhyay vs Sm. Purnamoni Dassi and Another

Salil Kumar Datta, J.—This is an appeal by the defendant against a judgment of reversal.

According to the plaintiffs respondents' case, the suit land situate in Mouja Patsimulia, P.S. Bongaon, 24-Par-ganas and recorded in K. S.

Khatian No. 467, Dag 220/745 measuring 73 decimals with jama of Rs. 2.75 belonged to Kachhi-muddin Molla and Abu Taleb Molla in raiyati

interest. In Chaitra 1356 B.S., this property was exchanged for the properties of the plaintiffs in the then East Pakistan. Due to communal

disturbances, the transaction was done in haste and no formal deed was entered into between the parties. The land valued at Rs. 100 had since

then been in possession of the plaintiffs who had been cultivating the same without interruption for long over twelve years, thereby acquiring, in

addition, title thereto by statutory right. The plaintiffs duly informed the Settlement Officer of the R.S, Settlement operations about their possession

of the land on basis of exchange and were assured that their names would be duly recorded. Accordingly they went on possessing the land taking

no further steps. The plaintiffs came to learn that in respect of the said jama, the defendant's name was erroneously recorded for about 2/3rd share

with the plaintiffs' names in the balance separately for about 1/6th share each. This recording was erroneous, without basis and illegal, as the

defendant never had any right, title or interest or possession in the suit land. As the defendant had been threatening dispossession since April 3,

1965, the plaintiffs instituted the suit on May 19, 1965 praying for a declaration of their title to the suit land and for injunction restraining the

defendant from interfering with their possession thereof.

The suit was contested by the defendant who in his written statement denied the alleged exchange and its legality without any registered

document as required in law and also the plaintiffs' alleged possession thereof. It was said that the raiyats Kachhimuddin and Abu Taleb

abandoned for good the land in the latter part of 1355 B.S. without making any arrangement for rent when the landlords entered on the holding

and orally settled the same to the defendant from the beginning of 1356 B.S. on acceptance of salami at a jama of Rs. 2.75 only. Since then the

defendant had been in possession thereof on payment of rent to the landlords and on vesting to the State of West Bengal. During settlement

operations, the plaintiffs taking advantage of non-receipt of dakhila from a co-sharer landlord fraudulently got their names recorded in respect of

19 decimals of land of the said dag. Thereafter by amicable arrangement, at the mediation of local respectable persons, the defendant had been in

possession and cultivating 54 decimals of the eastern portion of the dag for long over twelve years on payment of rent to the State of West Bengal

while the remaining area came into possession of the plaintiffs. The plaintiffs' suit should accordingly be dismissed.

In the trial on evidence, the learned Munsif held that there could be no presumption of correctness of the settlement record in view of the

challenge made by both parties, and, further that in absence of a registered deed the plaintiff could acquire no title to the suit land on the alleged

exchange. The plaintiffs' case of exchange or possession on oral evidence was disbelieved in absence of any rent receipt from the landlords or

mutation of their names during 1356 to 1361 B.S. when there was vesting of the superior interest. Even the oral evidence of the P.Ws. it was held,

was inconsistent with the plaintiffs' case of alleged possession since 1356 B.S., as the erstwhile owners, according to such evidence, left for

Pakistan in 1359 B.S., so that there could no exchange in 1356 B.S. On the above findings the suit was dismissed,

Before the appellate court, the plaintiffs relied on the acquisition of title, not on exchange in absence of any registered instrument, but on their

possession for long over twelve years adversely to the real owners. The learned Judge found that there was sufficient acceptable evidence to show

that the plaintiffs had been in possession of the suit property since Chaitra 1356 B.S. while there was no evidence of abandonment by former

raiyats or of the entry by landlords or of the possession by the defendant in support of defence. It was further held that the suit for declaration of

title on basis of possession was maintainable against all except the rightful owner. It was also held on evidence that the plaintiffs had been in

adverse possession of the land for the statutory period and were entitled to protection particularly against the defendant. The appeal was

accordingly allowed and the suit was decreed in part, restraining the defendant permanently from causing any disturbance in the plaintiffs'

possession of the suit land. The present appeal is against this decision.

It is not necessary for us to consider if the plaintiffs could acquire title on basis of the alleged exchange without any registered document in

support, as before the appellate court the plaintiffs gave up their untenable case of acquisition of title by exchange not evidenced by any registered

document as required by Section 26-C of the Bengal Tenancy Act, 1885. The plaintiffs claimed their right to .the reliefs claimed, which has been

upheld by the appellate , court, on basis of their title to the suit lands acquired by adverse possession since Chaitra 1356 B.S. against all over the

statutory period. Even if the assertion of adverse title was not against tha owners, could the plaintiffs in possession of the suit lands assert their

possessory title against all interference except by the rightful owners? The appellate court held that the plaintiffs were entitled to such right on the

finding that the plaintiffs had been in possession of the suit land at the time of such interference.

The appellate court disbelieved the defence case of abandonment of the suit land by the recorded raiyats and of fresh settlement thereof to the

defendant on entry by them thereafter discarding the rent receipts by the erstwhile landlords as not genuine. The appellate court also accepted the

plaintiffs' case of possession of the suit land since about the time of alleged exchange. These findings are findings of fact not liable to be interfered

with in a second appeal and no grounds have been established in this court to interfere with those as being based on inadmissible evidence or

without evidence or otherwise. The same is the position in regard to rent receipts Exts. A and A1, found, as already stated, to be not genuine on

scrutiny. The rent receipts granted by the State (A2-A6) were merely in terms of the Record of Rights which, by themselves do not confer any title

and according to defence were erroneous, though the plaintiffs also did not state why they did not possess any rent receipts while claiming payment

of rent.

The defence case of abandonment was held by the appellate court as not proved and, it appears, no evidence of notice as required under Sub-

section (2) of Section 87 of the Act was produced. In fact, the hand of the co-sharer landlord Siba-pada, who happened to be a cousin of the

defendant and supported his case as the only other witness of defence, could be found in Exts. Al and A6 as being the person depositing the rent

which was obviously no business of his.

The point for consideration now is about the maintainability of the suit with reference to the relief for injunction from interference with the

plaintiffs' possession of the suit land in the context of their possession thereof as found by the appellate Court. As has been noted in the case of

Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, , the Supreme Court quoted with approval the following proposition of

law laid down in Perry v. Clissold 1907 AC 73:

It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of

ownership has perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title

by the process of law within the period prescribed by the provisions of the statute of limitation applicable to in the case, his right for ever is

extinguished, and the possessory owner acquires absolute title."" Following the above principle, it was held in Somnath Burman Vs. Dr. S.P. Raju

and Another, , that between a wrongdoer and the prior possessor prior possession of the plaintiff in an action for ejectment is sufficient title against

all but the true owner and the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person.

The suit by the plaintiffs in the instant case is for an injunction against a wrongdoer, as found by the appellate Court not against the defendant as

an agent of the rightful owner or tenant while the case of the defendant's tenancy had been rejected by the appellate court. The relief claimed is for

restraining such defendant as a trespasser from interfering with the plaintiffs' prior possession. The suit, in the light of the propositions of law

indicated above is thus maintainable in law. The plaintiffs were rightly held entitled to such injunction against the defendant except the true owner,

as the former tenant or their landlords now the State unless' their title is perfected by adverse possession which is not the case before us.

The appeal accordingly fails and is dismissed with costs.