Gayani Sahu vs Balchand Sahu and Others

Ross, J.—This is an appeal by defendant first party against the decree of the Subordinate Judge of Muzaffarpur reversing so much of the decree of the Munsif of Motihari as dismissed the suit of the plaintiffs against the defendant No. 1, The suit as first framed was a suit for a declaration of plaintiff''s title to certain plots of land in Khata No. 153 of the Record of Rights of Mauza Patora. One Gudari Sahu had three sons and one daughter. Tie plaintiffs represent two of the sons, the defendant second party the third son, and defendant first party is the daughter''s son. The plaintiffs alleged that the land in suit was the joint property of themselves and defendant second party and had been wrongly recorded in the Record of Rights as being in possession of defendant No. 1 who had no concern with it. A Criminal case about one of the plots having been decided against the plaintiffs, they brought the suit for a declaration that the defendant first party had no connection with the land in suit which belonged to the plaintiffs and defendant second party and that the entry in the Record of Rights was wrong. The defence of defendant No. 1 was that the suit was barred by 12 years'' limitation as the plaintiffs had not been in possession for more than several 12 years. It was also barred by Section 42 of the Specific Relief Act and by estoppel. The land had been given to defendant first party by his maternal uncle after the death, and by the direction, of his maternal grandfather Gudari Sahu about 20 years ago. 15 or 16 years ago he had separated from the others. Tawan was paid separately to the Motihari concern for this land by the defendant No. 1 and he was separately recorded for it by the landlord and he had in any case acquired title by 12 years'' adverse possession. To meet the objection about Section 42 of the Specific Relief Act the plaint was amended and the plaintiffs prayed for recovery of possession. The Record of Rights showed Khata No. 153 as part of the joint holding of plaintiffs and defendant second party but in possession of defendant No. 1. The Munsif on a consideration of the evidence held that this entry was correct and that the plaintiffs had failed to prove possession within 12 years and dismissed the suit. The Subordinate Judge came to no decision as to possession. He held that the gift alleged by the defendant was invalid for want of a registered document and for want of evidence of consent of all the members of the family. If, therefore, the defendant was in possession, his possession in the absence of a gift must be held to permissive and on this ground he decreed the suit. In this view the learned Subordinate Judge was clearly wrong. It is nowhere pleaded by the plaintiffs that the defendant''s possession was permissive; it was simply denied. At the time of the amendment of the plaint by the addition of the prayer for recovery of possession, no amendment of the body of the plaint seems to have been made and there is no allegation of possession by defendant No. 1 except possibly as to Plot No. 445. Permissive possession is not the case of either party and, so far as can be seen from the judgment, there was no evidence of it. One of the plaintiff''s witnesses seemed to support the story of gift as found by the Munsif. The Subordinate Judge was, therefore, not entitled to decree the suit on a purely hypothetical explanation of the defendant''s possession. Thus, in Shivabasava v. Sangappo [1905] 29 Bom. 1, the Judicial Committee held that where the Court disposed of a suit on a case not raised by the parties and to which evidence had not been directed, there was a substantial error or defect of procedure. Moreover, when the defendant failed to prove the gift the conclusion to be drawn was not that his possession was permissive but that it was that of trespasser: Sambu v. Nama [1911] 35 Bom. 438. The result of this error is that the Subordinate Judge has not properly considered whether the defence evidence amounts to proof of title by adverse possession. A further consequence is that he has not considered at all whether the plaintiffs have proved possession within 12 years as they were clearly bound to do, the suit being a suit for recovery of possession and governed by Article 142 of the Limitation Act.

In my opinion, therefore, there has been no proper trial of this appeal. The present appeal is decreed and the decree of the Subordinate Judge is set aside and the appeal remanded for re-hearing. Costs will abide the result.