Chandra Dip Rai and Others vs Ramanand Thakur and Others

Dawson-Miller, C.J.—This is an appeal on behalf of the plaintiffs from a decision of Kulwant Sahay, J., setting aside a decree of the Additional Subordinate Judge of Shahabad and dismissing the plaintiffs'' suit. The question for determination in the case is whether or not the learned Judge of this Court was right in holding that the Judge of the lower appellate Court in arriving at his decision has misplaced the onus of proof. The suit was brought by the appellants to recover possession of a small plot of land of about 1 bigha in area known as survey plot 362 in Mauza Jasidih. The plaintiffs'' case was that the land in question originally formed a part of 12 bighas of land owned by one Manogi Rai who died in the year 1902. When he died the plaintiffs who were the descendants of a collateral branch of Manogi''s family and one Rekha Rai who was a descendant of another collateral branch of the family took by inheritance the estate of Manogi between them, the plaintiffs'' branch obtaining in their share the plot 362 in question. This happened in the year 1902 and the plaintiffs'' case is that ever since that time they have been in possession until 1922 when they were dispossessed by the defendants.

The defendants'' case on the other hand, put shortly is--and when I use the term defendant''s I mean those other than defendant 5 for he now represents Rekha''s branch of the family--that the whole of the property went to Rekha by a gift in the lifetime of Manogi Rai and that after Rekha''s death the landlord sued his widow for rent and got a decree and purchased the property in the year 1902. Thereafter they say there was a usufructuary mortgage granted by the landlords in favour of the defendants and subsequently in the year 1336 F. (that is in the year 1919 A.D.) the landlords took nazarana or salami from the contesting defendants and settled the lands with them and that in fact the landlords have been in possession or the defendants through them first of all as mortgagees and secondly as raiyats of the land ever since the year 1902. The Record- of-Rights published in November 1911 is in favour of the defendants and this plot 362 is recorded as being in their possession as mortgagees. The plaintiffs'' case was that there had been a dispute between them and the landlords of long standing and that all these transactions including the rent-decree against the widow of Rekha and the subsequent mortgage to the defendants and the subsequent settlement by the landlords with the defendants were purely sham transactions; that the defendants never in fact got possession of the land until, as I have said, 1922 shortly before the present suit was brought. They further say that the entries in the Record-of-Rights were based on those documents, at all events largely based upon those documents, which they claim now to have proved to have, been purely paper transactions.

The question, therefore, which the Court had to determine was how far the evidence of the Record-of-Rights was to be accepted in face of the evidence put forward by the plaintiffs in the present suit showing their title to the land and their possession since the year 1902.

The learned Subordinate Judge who heard the case on appeal from the trial Court found all the facts in favour of the plaintiffs. He came to the conclusion that the plaintiffs had got possession of this plot 362 shortly after the death of Manogi Rai as part of their share by inheritance in 1902; that the rent suit against Rekha''s widow was merely an illusory transaction; that after the sale in execution of the rent-decree the landlords in fact never get possession of this plot; that subsequently although a usufactuary mortgage was granted in favour of the defendants it was a mere paper transaction and the defendants did not get possession; further that the settlement in 1919 on payment of a nazarana was again a purely illusory transaction. Having arrived at this conclusion upon the evidence before him--and that conclusion I may add was largely based upon the fact that no evidence of actual possession had been given on behalf of the defendants at all--he considered how far the entry in the Record-of-rights which raised a presumption in favour of the defendants'' case was to be given weight as against the evidence which he accepted and which I have just referred to. In dealing with that part of the case he says:

The mainstay of the defendants is the tanaza decision dated 2nd April 1910. (That was a decision given after a dispute between the parties a year before the Record-of-Rights was finally published) from which (I am quoting the words of the Judge) the suit is not within 12 years.

It is contended by the defendant-respondent that in view of Baikuntha Nath Rai v. Basanta Kumari Dasi [1916] 23 C.L.J. 151 the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants'' case and that is for the plaintiff to prove that he is within 12 years of dispossession. We have seen above that the plaintiff has given evidence of his title and that is supported by the khatians and the circumstances and that the defendants'' evidence cannot be accepted for the proof of title to rebut the plaintiffs'' case. Thus we are led to believe that Deonath Rai and Rekha Rai divided between themselves the lands of Manogi Rai and the suit land is one of them. Defendant 5 supports the plaintiff (defendant 5 is the son of Rekha who took the other portion of Manogi''s inheritance):

and there is no reason to disbelieve him. So we believe that the plaintiffs got possession of the suit land after the said division.

There is a clear finding that notwithstanding the entry in the Record-of-rights the plaintiffs did, in fact, get possession of the land in suit and the converse must equally apply, namely, that the defendants did not get possession. The Judge then goes on:

But the tanaza was decided against the plaintiffs and they have come over 12 years after that.

The learned Judge then goes on and says:

It is necessary to examine the judgment of that dispute. It refers to the sale and purchase against Mt. Surta Kuar:

(that is the widow of Rekha):

and to the mortgage dated 16th September, 1909, by Hari Charan Rai and holds that plot 362 was proved to have been in actual possession, of Ramanand Thakur. We have seen that the sale was a sham transaction and the mortgage was also a sham one. The maliks and the plaintiffs have been at loggerheads since a remote time and there is good reason for the maliks to have entered into sham transactions. The plaintiffs were in possession of the property. The sale to the maliks and the mortgage could not dispossess the plaintiffs.

If that means anything, it means, to my mind, that shortly after manogi''s death in the year 1902 it was the plaintiffs and not the defendants who got possession of this property and from the findings of the learned Judge it seems to me perfectly clear that he was satisfied that the plaintiffs had remained in possession of that property up to the date when the Record-of-Rights was published or at all events the time when the tenaza dispute took place. Then he goes on to say not whether the entry in the Record-of-Rights was an accurate entry, because he had already found that it was not, because in his view the parties then in possession were not those stated in the Record-of-Rights but the plaintiffs, but whether the entry in the Record-of-Rights would in itself amount to a dispossession and comes to the conclusion that it would not and, therefore, there being neither by the Record-of-Rights itself nor in any other evidence anything to show that there was a dispossession after the year 1909 until the year 1922 when the plaintiffs alleged that they were dispossessed he says, and, in my opinion, quite rightly, that we are bound to fall back upon that evidence because it is the only evidence of dispossession and, therefore, he accepted the plaintiffs'' evidence that the dispossession took place in 1922. It seems to me to follow from this that he found that the plaintiffs had been in possession all along from the year 1902. In dealing with this part of the case after stating that the plaintiffs were in possession of the property the learned Subordinate Judge goes on and says:

The sale to the maliks and the mortgage could not dispossess the plaintiffs. The decision of the tanaza was not actual dispossession and it was apparently a mistaken decision when we see that the other lands of Manogi Rai were entered in the plaintiffs'' khatians and in khatians of defendant 5 in spite of the said sale. The mere decision of the tanaza or the mere passing of an order and a mere entry in the Record-of-Rights as well as a mere order u/s 145 do not necessarily constitute actual physical dispossession. There is no evidence that at about the decision of the tanaza or before or after it the defendants actually dispossessed the plaintiffs. When the plaintiffs were once in possession they must have been dispossessed sometime or other. We do not find that they were dispossessed at about the time of the tanaza and there is no evidence on behalf of the defendants showing when the plaintiffs were dispossessed. The latter have given evidence that they were dispossessed in 1329 and we have no alternative but to believe it.

In dealing with this part of the case the learned Judge of this Court before whom the matter came on second appeal considered that the learned Subordinate Judge in the lower appellate Court had misplaced the onus and that it was not for the defendants to prove that the dispossession took place further back than 12 years from the beginning of the suit but that it was for the plaintiffs to prove dispossession within that period. With the proposition so stated by the learned Judge I entirely agree, but I am not help feeling that the learned Judge has failed to appreciate that the Subordinate Judge of the lower appellate Court had already decided in an earlier part of his judgment that the plaintiffs were in fact in possession notwithstanding the entry in the Record-of-Rights from the year 1902 and that there was no evidence to show their actual dispossession subsequently to that date up to 1923 and in dealing with the entry in the Record-of-rights which he must have considered had been rebutted by the other evidence in the case he was merely dealing with it in the passage criticized by Kulwant Sahay, J., from the point of view of whether or not that entry in itself constituted actual dispossession of the plaintiffs. He held, and I think rightly, that did not in itself constitute dispossession, although of course it may he evidence of actual possession at that time but that was not the question the learned Judge was dealing with in that part of his judgment. He considered whether there was any other dispossession of the plaintiffs subsequent to the Record-of-Rights. He found that there was no evidence on the part of the defendants and the only evidence was that of the plaintiffs themselves who showed that they had been dispossessed within a very short time of the suit, and he accepted that evidence. For these reasons I think with great respect to the learned Judge who tried the case in second appeal that his judgment cannot stand. I think the decision should be set aside and the decree of the Additional Subordinate Judge of Shahabad should be restored. The appeal to this Court will be allowed. The appellants are entitled to their costs as against the contesting defendants in this Court and before Kulwant Sahay, J.

Ross, J.

I agree.