Dalip Narayan Singh and Another vs Rasik Lal Chaudhri and Others

Rowland, J.—The petitioners were first party in a Section 145 proceeding regarding lands comprised in Khata Nos. 164 and 166 in village Lauriha, P.S. Tarapur, in Monghyr District;. The area in dispute is 39.59 acres. The second party opposite party were admittedly the raiyats of this land before the transactions on which the petitioners base their claim of title. They claim to be still in possession as raiyats and the Magistrate has given effect to that contention. The petitioners held a mortgage from the opposite party over the disputed land on which they sued and got a decree for sale. The decree was executed, the property sold up and petitioner 1 purchased the property at the execution sale dated 16th May 1929. The sale was confirmed and writ of delivery of possession under Order 21, Rule 95, was issued by the Court. It is said that delivery was opposed on the spot on the part of the raiyats and was infructuous. The date of this is 17th July 1930.

A second writ of delivery of possession was issued and purports to have been duly executed on 4th October 1931 without any opposition on the part of the judgment-debtors. Meanwhile a rent suit was instituted by the landlord, the Baneli Raj, against the raiyats opposite party in which a decree was obtained and a portion of the holding only was put up for sale. It was sold to the landlord Baneli Raj and the sale was confirmed and sale certificate granted which bears date 28th January 1932.

The petitioner being (according to his case) in possession, came to terms with the Baneli Raj in whose favour he executed a kabuliyat in respect of that part of the holding which had been sold in execution of the rent decree. The date of this kabuliyat is 24th September 1932. He was also, he claims, recognized as a tenant in respect of the remainder of the holding which had been sold in execution of his own mortgage decree; but had not been sold under the rent decree.

He paid a sum of Rs. 874-6-3 on account of arrears of rent and salami and according to his case remained in possession. He has paid rent for the year 1340 Fasli under receipts Exs. 3 and 4, the total payments being Rupees 370-13-3. Some lagits and seahas of the Baneli Raj are produced. Some accounts, Ex. 10 series, are produced to show expenditure on cultivation on behalf of the petitioner and are supported by cash book Ex. 11. The present proceedings started under the following circumstances:

On 25th November 1932 a constable reported at the police station that Dalip Narayan Singh, petitioner, was gathering men in view of a dispute regarding possession of this land. On 26th November 1932 the petitioner through a tahsildar reported at the police station that there was danger of a breach of the peace being committed by the opposite party. On 15th December 1932 the Sub-Inspector submitted a report recommending that the opposite party should be forbidden u/s 144, Criminal P.C., to go on the disputed land. The proceeding u/s 145, Criminal P.C., was drawn on 31st January 1933 and the order in favour of the opposite party was passed on 18th April 1933. The opposite party raiyats have put in evidence, Exs. D and D 1, rent receipts showing payment of rent to the Raj on 16th December 1931 and 11th January 1932.

These appear to be part payments on account of the Raj rent decree which were not sufficient to prevent the holding being sold. The opposite party also filed a sale-deed dated 27th February 1931 by which part of the disputed land was sold by them to a third party, Raj Narain. This sale was after the sale in execution of the first party''s mortgage decree and could not therefore pass any title. It was however alleged by the second party that Raj Narain was in possession of certain specified plots by virtue of this sale deed. Exs. A and A-1 show that Rasik Lal, opposite party No. 1 obtained seeds for experiment from the Agricultural Department in November and December 1931; but the documents do not show for what land the seeds were obtained.

It is contended in revision that the Magistrate was bound to act on the delivery of possession given by the civil Court and maintain the possession of the petitioner. The Magistrate in dealing with the question of delivery of possession expresses doubt whether such delivery actually took place, and further says that if there was a delivery of possession he is not bound to respect it. I am not clear exactly what the Magistrate means by this last observation. If he means that in spite of the delivery of possession having been taken he was entitled to hold that possession did not pass to the person to whom possession was delivered by the Court, then he is in error. As pointed out in Agni Kumar Das Vs. Mantazaddin and Another, :

It is an error to hold in such cases that the decree-holder was never in possession or to ignore the delivery to him. This is a particularly grievous error in cases of boundary disputes as to outlying portions of the land delivered. Cases in which it has been said that the Magistrate has interfered with or nullified the civil Court''s decree will, on examination, be found to be cases where the Magistrate has come to a wrong finding on the fact of possession by reason of this error.

Once it is established that possession was delivered that fact proves the possession of the party taking delivery on the date when it was delivered and raises a strong presumption in favour of the continuance of that possession unless the other side can show that subsequently they have succeeded effectively in displacing the holder of it and restoring their own possession: vide Rambarai Rai v. Sagina Rai AIR 1923 Pat 437. On the other hand there is no rule of law that a Magistrate is bound to accept the evidence that the civil Court peon went to the village and actually performed the acts which are required to constitute a delivery of possession. It is however contended that the Magistrate in considering the evidence as to delivery of possession has been misled by a misunderstanding as to what was delivered and what decree was being executed. The Magistrate has said:

The disputed land was sold in execution of a rent decree of Baneli Raj and was bought by Dalip Babu who got delivery of possession on 4th October 1931.

The Magistrate appears to be under the impression that this delivery of possession was taken in pursuance of a sale in execution of the rent decree. This is a complete misstatement. Again the Magistrate has said:

He (Dalip Babu) is alleged to have got delivery of possession in execution of the rent decree of Baneli Raj.

Some confusion appears also to have been caused by a petition dated 15th December 1932 presented by Misri Mahto on behalf of Dalip Babu in which it was asserted that he had got possession over the disputed land on 4th August 1932. The petition is typed and in typing it the date was left blank. The date, 4th August 1932, is put in in manuscript in ink and was obviously written at a different time from the typing of the body of the petition.

It is clearly a wrong date. It is no one''s case that there was any delivery of possession on that date. This misunderstanding and the confusion which the Magistrate has made between the mortgage decree and its results and the rent decree and its results seems to have affected the Magistrate''s attitude in general towards the evidence and particularly towards the evidence regarding delivery of possession. As regards the land alleged to have been transferred by the second party to Raj Narain Singh it does not appear that Raj Narain Singh, has filed any written statement contesting the claim of the petitioners to possess these plots. This aspect of the matter has not been discussed by the Magistrate at all nor has he supported his finding about these plots by referring to any evidence of Raj Narain''s possession.

I think in the result that the order complained of must be set aside and the case go back for findings on the questions of fact arising in the case. The District Magistrate may in his discretion arrange for the case to be placed either before the Magistrate who originally heard it or before some other Magistrate.