Gathi Koch and Others vs Meheruddin and Another

Deka, J.—This appeal is at the instance of the defendants in a suit brought by the plaintiff for declaration of his title and delivery of possession with respect to 1K-13L of land as described in the schedule to the plaintiff.

The plaintiff''s case was that he purchased the land from the original pattadar, Jogora alias Joyram, and the purchase was a joint one by the plaintiff, Meheruddin as well as his brother, Safiruddin, and the land in suit fell to the share of Safiruddin, but subsequently Meheruddin got the land by exchange, and defendant Gathi Koch was Mcheruddin''s tenant. The other two defendants, Bapuram Koch and Naranath Koch, were sons of Gathi Koch.

The plaintiff''s case was'' that the defendants had been possessing the land as his tenants, but since 1947 or so, they had ceased to pay rent and in 1940, he made an attempt to possess the land himself but he was dispossessed by the defendants.

He accordingly prayed that his title might be declared with respect to the land in suit, which has an area of 1K-13L. in dag No. 490 of periodic patta No. 19 of Bam Dhekia Khowa Gaon, Mauza: Chaukhat.

The defendants filed a joint Written Statement and their case was that they had been possessing the disputed land for more than twelve years as appertaining to a patta standing in the name of Musst Sonpahi, daughter of Jogora, from whom the plaintiff and his brother claimed to have purchased the land in suit.

Sonpahi was the wife of Gathi Koch and mother of the other two defendants They deny any relationship of landlord and tenant with the plaintiff at any time and claim to have possessed the land all along independently and adversely to all others.

The pertinent issues framed in the suit were:

Whether the defendants took the land in suit from the plaintiff and also dispossessed the plaintiff as alleged in the plaint?

Whether the defendants possessed the land as part of their own land for more than twelve years, and whether they have acquired Tight and title by adverse possession?

whether the plaintiff''s claim is barred by limitation?

The Boding of the learned Munsiff on all these issues was Oil favour of the defendants and he held that the plaintiff had failed to prove that the defendants had been possessing the land as his tenant at any time, and that the plaintiff''s claim was barred under Article 142 of the Limitation Act, he not having exercised any Act of possession during the last 12 years before; the institution of the suit, lie further field that the defendants had acquired title to the land by adverse possession for more than the statutory period.

The learned Additional Subordinate Judge who heard the appeal, accepted the finding of the first Court that there was no relationship of landlord and tenant between the parties, but, on the other hand, he held that the defendants had failed to prove that they had possessed the land adversely for more than 12 years.

Once it is found that the suit is barred under Article 142 of the Limitation Act, there is no obligation cast upon the defendants to prove that they had held the land adversely, because, in a suit for eviction, the burden is always on the plaintiff to prove that his case is within time, apart from the fact that he has title to the land in question.

The finding of the first Court that the plaintiff did not exercise any act of possession during the last 12 years, is not reversed, and as such, that finding remains, and the result of it is that the plaintiff''s suit is barred. Even assuming that the learned Additional Subordinate Judge was entitled to enquire into the fact of adverse possession of the defendants, as alleged, there he introduced a new case not pleaded by any of the parties, namely, that the defendants might have exercised possession only for a short period, and not for 12 years as a result of a bona fide mistake as to boundaries.

That as a matter of fact, is nobody''s case. The Additional Subordinate Judge ought, to have applied his mind to find out what was the nature of possession exercised by the defendants. Admittedly, the case of the plaintiff was that there was relationship of landlord and tenant as between the plaintiff and the defendants, and in the absence of any finding to that effect, the possession of the defendants must be construed to be independent if not adverse.

Therefore it was the bounden duty of the plaintiff to prove that lie had possessed the land sometime within the last 12 years, as was sought to be made out in the plaint, but that story not being accepted by any of the Courts below, it must remain as a fact that the defendants had possessed the land adversely, no matter what the duration was.

The plaintiff''s suit, therefore, being barred under Article 142 of the Limitation Act, which finding the learned Sub-Judge did not reverse, I must hold that the judgment was not a proper judgment of reversal. I accordingly hold that the suit is liable to be dismissed, and set aside the judgment arid decree passed by the appellate Court and restore the order of dismissal passed by the learned Munsiff. In the circumstances of the case, I make no order for costs.

The appeal is allowed.