Ganpat Singh and others vs Ahibaran Singh

Mohammad Noor, J.—Though the issue involved in the case is simple, it has come up to this Court for a second time. The plaintiff instituted the suit for recovery for possession of a piece of Land which has been allotted to his takhta in a collectorate partition. The plaintiff, the principal defendant, and some others were co-sharers of village Sangrampore. The village was partitioned, and separate takhtas were allotted to various proprietors. One such takhta was allotted to the plaintiff. One of the plots of the plaintiff''s takhta is No. 3662. Possession was delivered to him in March 1924. This plot has a house on it which has been found to have been in possession of the defendant from at least 1918. The plaintiff alleged that he obtained possession of the plot after partition but was subsequently dispossessed by the defendant and sued for possession. The defence was that the house had been in possession of the defendant as a tenant from before he became a part proprietor of the village and therefore he was not liable to be ejected on partition. The trial Court held that the plaintiff''s story about his possession and dispossession was untrue, that the house stood there at least from some time in 1918, that the possession of the defendant was that of a co-proprietor but held that in pursuance of Ss. 64 and 65, Estates Partition Act, the plaintiff was not (sic)ntitled to khas possession of the handle could only get a fair rent from the defendant. It dismissed the plaintiff!s suit. There was an appeal by the plaintiff. It was heard by the District Judge, Mr. Davies, who held that Ss. 64 and 65 had no application. They only applied during the (sic)artition. He held that the possession (sic)f the defendant on the land was that (sic)f a part proprietor and such possesion could not be continued after the (sic)artition, and therefore decreed the plaintiff''s suit.

There was a second appeal to this Court (Second Appeal No. 221 of.927). Fazl Ali, J., who heard the appeal, though he agreed with the learned District Judge about the noun-applicability of Ss. 64 and 65, Estates Partition let, considered that a certain aspect of he case was overlooked by the District Judge. He remanded the case for their (sic)etermination. The real nature of this (sic)rder of remand is in controversy before (sic)ne, and I shall deal with it in a (sic)noment. It is, however, necessary to (sic)tate here the points which Fazl Ali, directed the District Judge to con(sic)ider. The land in suit is 3 kathas (sic)O dhurs. At the time of partition the plaintiff wanted that it should be assigned to the defendant as it contained a louse belonging to him. The defendant being anxious to get other basti(sic)ands in his quota wanted it to be assigned to another landlord, the Court of Awards. The Collector assigned it to he Court of Wards, but on appeal to he Divisional Commissioner by some sort of compromise one katha of it was (sic)llotted to the plaintiff and the remain-(sic)ng 2 kathas 10 dhurs to the Court of Wards. There was a reservation that his allotment would not entitle the (sic)andlords to dispossess any tenantestab(sic)ished on. that land. When the matter went up to the Board of Revenue, it modified the Commissioner''s order and (sic)llotted the entire plot to the plaintiff. Mow Fazl Ali, J., observed that the District Judge in dealing with the appeal did not consider the effect of the Commissioner''s order on the right of the plaintiff to dispossess the defendant and he remanded the case for the consideration of this question. After the (sic)remand the case was heard and decided (sic)oy Mr. Rowland, who, on considering the question referred to in the order of Fazl Ali, J., has decreed the plaintiff''s suit once more. The defendant has come up in second appeal.

The first point urged by Mr. Das, who appears for the appellants, is that of limitation. His grievance is that the Courts below have not found that the plaintiff was ever in possession within 12 years of the suit and the plaintiff cannot succeed without such finding and ask for a remand once more. I am, however, unable to understand how any question of limitation arises in this case. In the Record-of-Rights which was published in 1911 this plot was recorded as unoccupied in possession of the proprietors. At that time admittedly the defendant was not one of the proprietors of the village. His connection with the village'' as proprietor commenced a few months later. Now if as found by both the Courts below the defendant occupied the land as a proprietor, the other proprietors could not disturb his possession without a suit for partition. This possession of the defendant cannot in any sense be adverse to other co-sharers, and on the finding of fact which I have stated, that the possession of the defendant was that of a co-proprietor, it was not necessary for the plaintiff to prove his possession within 12 years of the suit. He is entitled to an exclusive possession after the partition by ejecting the defendant. Mr. Das, however, contended that the learned District Judge ought to have considered whether or not the defendant was in "possession of the land as a tenant prior to his obtaining the proprietary right in the village.''''

First of all, as I have said, there is a clear finding that the possession of the defendant was that of a proprietor. Secondly, assuming that his possession was that of a tenant and commenced between the publication of the Record-of-Rights and his acquiring a part proprietary right of the village, his case has all along been that he was a tenant not under all the proprietors but only under one of them, namely, the Court of Wards. In that case his position will in no way be better than that of that proprietor, the Court of Wards. It has been laid down in this Court in the case of Thakur Raghunandan Sahay Singh Vs. Thakur Dripa Nath Sahai Singh, , that a landlord, who gets a piece of land on partition does not take it subject to any encumbrance created on it by other co-sharers and not by him. Therefore, assuming that the defendant was inducted upon the land prior to his obtaining a proprietary right by a co-sharer, landlord (though the interval between the publication of the Record of-Rights when obviously the defendant was not there a ad the date of his acquiring the proprietary right was only about seven months), he cannot continue on the land after the partition when this land has been assigned to another landlord. His right, if any, will be according to the principle of S. 99, Estates Partition Act, in the takhta which has been assigned to the landlord who inducted him on the land.

Therefore, as I have said, the question of limitation does not arise. The plaintiff''s cause of action was his delivery of possession. No doubt, the plaintiff came to Court with untrue statements of facts, claiming his possession and then a subsequent dispossession. But this in no way disentitles him to relief which he under the law ought to get on the facts found by the Courts. Then Mr. Das has pressed once more the applicability o: S. 64, Estates Partition Act, relying upon the case of Raziuddin Hussain v. Taharat Hassain (1912) 13 I C 498 and contended that the house being a residential one the defendant is under the Law entitled to remain in possession of it on payment of rent. The revenue authorities having failed to perform the statutory obligation cast upon them by that section of fixing a fair rent, the civil Court should give relief to the defendant. There are, however, various difficulties in the way of accepting this contention. First of all, in my opinion, the question is no longer open. Mr. Davies definitely held that S. 64, Estates Partition Act, was not applicable and Fazal AH, J., accepted that finding and the matter is concluded. The learned Judge''s remarks are these:

In my opinion the learned District Judge seem? to be correct in his view that strictly speaking S. 64, Essetes Partition Act, has no application to the facts of the case. But at the same time he has guored an important aspect of the case which was referred to in the judgment of the learned Munsif, etc.,

The important aspect referred to by the learned Judge is what I have stated above. The finding of the District Judge about the non-applicability of the Law having been affirmed, Mr. RowLand when the matter went back on remand did not consider the question at all. He thought, and in my opinion rightly thought, that the matter was concluded by the findings of the High Court. His remarks are as follows:

On appeal my predecessor held that S. 64 or S. 65, Estates Pirtition Act,'' was of no avail to the defendant (sic)d this view has been affirmed on second appeal by the Honourable High Com that is to say, defendants cannot resist'' the su in their capacity of proprietor in the esta which was partitioned.

Mr. Das, however, contended the Fazal Ah, J., set aside the judgment and the decree of the lower appe(sic) late Court and remanded the case 1(sic) that Court for disposal according to la(sic) and, therefore, the judgment of M(sic) Davics no longer exists and Mr. Row(sic) land ought to have heard the who. appeal. He relies upon the, case (sic) Tarinee Kant v. Koonj Beharee (3) where it was laid down that the eff(sic) of an order of remand for a new tri(sic) is entirely to nullify the first decision and to re-open the whole case. The case, however, has no application. Her this case was not remanded for r(sic) hearing of the entire appeal, but only for the determination of a particula(sic) point specifically mentioned by the learned Judge of this Court. In th case relied upon by Mr. Das. Jackson", J seems to have made the matter clea(sic) He says:

The effect of our decision, that is t(sic) decision of Hobhouse, J., and rovself, on tl(sic) former occasion, was to get rid entirely of tl(sic) first decision of the Zillah Judge.

The judgment of remand of that case is not printed in the report, but it (sic) clear that there the remand was for de novo hearing. Mr. Das lias also referred to the case of Kartick Chandr Das v. Satya Nidht Ghosal (1916) 32 I C 240,where Holmwood and Mullick, JJ., laid down that the High Court in the exercise of it powers of supervision under the Charte(sic) rightly assumes in certain cases authority to limit the scope of certain ap(sic) peals remanded to the lower Court with out keeping them on its own file. But whenever this is done it is absolutel(sic) essential that the High Court should la(sic) down clearly without any possibility o(sic) mistake that it did intend to limit the scope of the appeal to certain specified questions. Mr. Das contended the Fazal Ali, J., made no limitation on remand. Now the remand in the present case was not one of the two kinds of remands provided in the Civil Procedure Code. It was a remand under the inherent power of an appella(sic) Court of the nature dealt with in Kartic Chandra Das''s case (1916) 32 I C 240. The who(sic) tenure of that judgment of Faza Ali, J., though he did not expressly said so. clearly indicates that the remand was for one particular purpose only.

The next case relied upon by Mr. Das, which requires consideration, is that of Jitendra Kumar Pal v. Mukshoda Charan Das A.I.R 1920 Cal 350=56 I.C. 1001 There the High Court had remanded the case for a decision whether a certain patti fell within the class of tenures described in S. 71 (b) of the Assam Land and Revenue Regulation. The reality of the patni had already been decided by the lower appellate Court. On remand the District Judge held that the patni was benami. It was contended in the High Court that after the remand he was not entitled to go beyond the finding arrived at on the former occasion. It was held that he could. This case also to my mind is of no help to the appellants. The question of the validity of the patni was to be decided on remand, and in course of deciding it the District Judge had before him materials on which he decided it to be benami. It was connected with the matter which was to be decided after remand. In my opinion, therefore, it is not open to me to enter into the question of the applicability of S. 64, of the Estates Partition Act.

Assuming, however, that I can do so, the appellant has two more difficulties to face. First of all, the correctness of the decision in the case of Raziuddin Hussain v. Taharat Hussaln (1912) 13 I C 498, seems to have been doubted in this Court in the case of Jainath Singh and Others Vs. Ramadhin Singh and Others, No doubt, that was a decision of a single Judge and no authoritative pronouncement was made, but it followed the case of Kesari Sahai Singh v. Hitnarayan Singh A. I. R. 1930 Pat 228=56 I.C. 149 It is true that in the last mentioned case Raziuddins case (1912) 13 I C 498 was not considered, and it was a case under S. 65, and not under S. 64, of the Estates Partition Act. Nevertheless the question remains.that the principle of Raziud-din''s case (1912) 13 I C 498, does not seem to have been favoured in this Court and, in my opinion, there are a number of difficulties in making it applicable. As was pointed out by Mr. Abani Bhushan Mukherjee who appears for the respondents that it is very doubtful whether a Deputy Collector can fix rent after the partition proceedings have closed. In Raziuddin''s case (1912) 13 I C 498 the Calcutta.High Court directed the District Judge to request the Deputy Collector to fix rent as provided in that section. The Deputy Collector was in no way bound to carry out that request and there does not seem to be any provision under which the civil Court can compel the Deputy Collector to fix such a rent. Be that as it may, the appellant is faced with clear finding of fact. S. 64 applies to residential houses and Mr. Davies clearly found that the house in question was not a residential one but a cowshed. That finding was not touched by Faza Ali, J., and was binding upon him and is binding upon me. That being so, S. 64 has no application, if not on account of the legal difficulty, on account of the clear finding of fact.

The last point urged was that Mr. Rowland ought to have given the defendant the protection contemplated by the order of the Divisional Commissioner and for the consideration of which the case was remanded. Now, first of all, the reservation was not made by the Board. Secondly, the Commissioner''s order was in my opinion unnecessary. It is the law that on partition the proprietors cannot dispossess the tenants. The partition is between the proprietors, and the tenants are no party to it. But here we have a finding of fact that the possession of the defendant over the land in suit was not that of a tenant but that of a part proprietor and such a possession cannot be protected if the land has been assigned to another proprietor on partition. In my opinion the plaintiffs are entitled to succeed, and their suit has been rightly decreed. They, however, came to Court with incorrect statements of fact about possession and dispossession which complicated the trial and, in my opinion, they should be made to bear their own costs throughout. I dismiss this appeal with modification. The plaintiffs'' suit will be decreed, but they will bear their: own costs throughout.