Isa Khan and others vs Smt. Raj Kaur

S.B. Sinha, J.—This appeal at the instance of the defendant-appellant arises out of a judgment and decree dated 30th August, 1935 passed by Shri Ram Anurag Singh 3rd Additional Subordinate Judge at Jamshedpur in Title Suit No. 63/5 of 1983-86, whereby he decreed the plaintiff-respondent''s suit. The original plaintiff Charan Singh filed the aforementioned suit for declaration of his title in respect of his land bearing Khata No. 38 appertaining to Khesra No. 593 at Gouri Shankar Road of Village Jugsalal in the District of Singhbhum.

The original plaintiff''s case in his plaint was that he took oral settlement of the lands in question from one Kripa Sindhu Mahato about 40 years prior to the institution of the suit for a sum of Rs. 50/- and thereafter he constructed a house on the said land.

The plaintiff however had also put forward an alternative case of adverse possession. It was further alleged by the plaintiff that a case under Bihar Restriction of User of Land Act was initiated against him in the year 1960 for causing repairs to the house in question wherein he was convicted by the trial court.

He preferred an appeal being criminal Appeal No. 165 of 1986 (Ext. 3/C) against the said judgment of conviction but although the conviction was maintained but the quantum of fine was reduced from Rs. 300/- to Rs. 100/-.

It was further the case of the plaintiff that he was arrested in connection with G. R. Case No. 43/72 in 1972 and when he was released on bail in the year 1976 (Ext. 3/A and 3); he found that he had been dispossessed by the defendant respondent No. 1 (Isa Khan).

Upon a querry made in that regard from the defendant No. 1, he was informed that he had purchased the house in question by a registered deed of sale dated 8.3.1975 from one Kali Charan Mahato.

He had therefore, filed the aforementioned suit for declaration of his title and recovery of possession.

On the other hand, the case of the defendant as pleaded in the written statement was that Kali Charan Mahto was the recorded tenant in respect of the suit lands. In the revisional survey settlement which was initiated in the year 1971 and completed in 1973, his name was entered in the revisional survey settlement record of right. The said Kali Charan Mahto sold the lands in suit to one Roshan Ali, son of Khursid All by a registered deed of sale dated 8.3.1975, and the said Khursid Ali on behalf of his minor son Roshan Ali executed a deed of sale in favour of the defendant No. 2 on 2nd February, 1976 and put her in possession thereof.

On the aforementioned pleadings of the parties, the learned court below framed the following issues :

Whether the suit property has been described correctly?

Whether Kalipada Mahto had any authority to settle the suit land?

Whether the suit land was settled by Kalipada Mahto in favour of Charan Singh?

Whether Charan Singh constructed the suit property?

Whether Charan Singh was in possession of the suit property?

Whether the plaintiffs or Charan Singh had or have any title to the suit property?

Whether the suit land belonged to Kali Charan Mahto.

Whether Kali Charan transferred the suit property in favour of Roshan Ali, who also transferred the same in favour of Sarifan Bibi?

Whether the plaintiff is the daughter of Charan Singh.

Whether the plaintiff has any title to the suit properly?

Whether the plaintiff is entitled to recover possession of the suit property?

Issues No. (Cha) and (Jha) were principal issues before the Court below and it was held by him that even if the case of the plaintiff''s settlement is not accepted, in view of the fact that the plaintiff was found to be in possession in the year 1960 as evident from the judgment of the aforementioned criminal case and he continued to be in possession thereof thereafter, he had acquired title by adverse possession. The learned trial court further held that as the plaintiff was in jail custody during the period when the revisional survey settlement had been going on, the entry in the record of rights must be held to be (sic).

Mr. N. K. Prasad, Learned Counsel appearing on behalf of the appellant has (sic) three questions in support of this appeal.

The Learned Counsel firstly submitted (sic) the purported oral settlement in favour of (sic) plaintiff by Kripa Sindhu Mahato in the year 1943 must be held to be illegal being the contravention of Section 107 of the Transfer of Property Act.

The Learned Counsel submitted that settlement in favour of the plaintiff could not have been made orally only because the consideration for such settlement was Rs. 50/-.

The Learned Counsel next content. that in view of the fact that Charan Singh did not question the entry of the name of Kal Charan Mahto in the revisional survey settlement record of rights, the trial court had no jurisdiction to hold that the said entry was incorrect.

The Learned Counsel lastly contended that in any event as the plaintiff did not put forward a case that he began to possess (sic) lands in question adversely from 1960, (sic) learned court below had no jurisdiction (sic) pass a decree on the ground the the plaintiff had acquired title by adverse possession.

It was further submitted that in any event, the facts stated in the judgment of crime court (Ext. 3) could not have been relied (sic) for the purpose of coming to a finding (sic) plaintiff had been in possession of the lands suit in the year 1960.

Mr. R. N. Sinha, Learned Counsel appearing on behalf of the respondents, on the other hand, submitted that the plaintiff acquired a valid title in the year 1943 and as the consideration for said transaction was less than Rs. 100/-, the same was not necessary to be effected by a registered instrument. It was further submitted that as admittedly a case under Bihar Restriction of Uses of Land Act was instituted as against Charan Singh, it must be hold that he had been in possession of the suit land and the house constructed therein at the relevant time and as he continues to be in possession of the lands in question for a period of more than 12 years from the said date; he must be held to have acquired indefeasible title by prescription.

In view of the aforementioned rival contentions of the parties, the following questions arise for consideration in this appeal :

(i) Whether the Oral transfer in favour of the plaintiff by Kripa Sindhu Mahato in the year 1943 was valid?

(ii) Whether the learned court below acted illegally in decreeing the suit on the ground that the original plaintiff had been in continuous possession of the suit land since 1960?

(iii) Whether the finding of the learned court below to the effect that the entry of the name of Kripa Sindhu Mahato in the revisional survey settlements record of rights which was finally published in the year 1973 was incorrect?

As all the aforementioned questions are inter-related they are taken up for consideration together.

It is now well known that in a case (sic) a permanent lease or a lease for period (sic) one year is executed, the same must (sic) evidenced by a registered instrument in view of the provisions contained in Section 107 of the Transfer of Property Act.

However, settlement of a land for agricultural purpose stands on a different footing inasmuch as, such a settlement can be made orally if the same is coupled with delivery of possession and grant of rent receipt.

In this case the plaintiff has although pleaded in para-2 of the plaint that he has acquired the land by reason of an oral settlement, from Kripa Sindhu Mahto but in paragraph 2 of the plaint neither he has mentioned that any rent receipt was granted in his favour nor did he disclose the quantum of rent. However, in the said paragraph he has mentioned the word ''consideration'' instead of ''Salami''. Although it does not appear that he has pleaded that Kripa Sindhu Mahto had orally sold the land in his favour for consideration of a sum of Rs. 50/-, but it is well known that Muffassil pleadings should not be strictly construed.

It is true that in para-2 of the plaint the plaintiff has asserted that Charan Singh look oral settlement of the suit land but to my mind it appears to be a case of loose pleading inasmuch as it has been stated that the said transaction was for consideration of Rs. 50/-. As Kripa Sindhu Mahto himself was a raiyat he could not have granted a settlement for construction of a house. Thus in my opinion the purported case of the plaintiff relating to oral settlement of the land in question was in effect and substance a case of ''oral Sale'' as would appear from the discussions made hereinbefore. Even all the witnesses examined on behalf of the plaintiff stated that Charan Singh purchased the properties from Kripa Sindhu Mahato.

Evidently both the parties understood that the case of the plaintiff is one of oral sale and accordingly evidence had been laid and the witnesses were examined and cross-examined. (See Bhagwati Prasad Vs. Chandramaule reported in 1966 S. C. 735).

Thus construed, such sale need not be evidenced by a. registered instrument.

It is now well known that in order to succeed on the basis of a plea of adverse possessions, the same has to be specifically pleaded.

However, there are certain exceptions to the said rule, e.g. where a person entering into possession by reason of an illegal transaction, he would be deemed to have began to possess the same adversely.

However, in this case the learned court below in paragraphs 30 to 32 of the judgment proceeded to consider the case of the plaintiff only on the basis of his purported possession since 1960.

The question of adverse possession however, has to be considered in the light of the facts and circumstances of each case.

Before proceeding to consider the questions involved in this appeal in details, it must be taken into consideration that a civil suit has to be decided upon preponderance of probabilities. The facts and circumstances of this case in their entirity have to be judged for the purpose of arriving at the findings on the issues involved in the suit.

It is not in dispute that Kripa Sindhu Mahto was father of Kali Charan Mahto and he was the original owner in respect of the suit land.

The plaintiff has given clears descriptions of the house that had been constructed by Charan Singh viz a brick built house with country tiles roofing consisting of three rooms two attached Verandahs, courtyard, with safely lank and Latrine.

The statements made in para-3 of the plaint has been traversed in para-8 of the written statement, but the defendants therein have not denied the description of the house standing on the suit premises. The defendants in the written statement also did not State as to who constructed the house in question.

The question as to who constructed the house and when the same was constructed are of prime importance in this case.

In the revisional survey settlement of record of rights (Ext. B) Plot No. 347 had been sub-divided as A, B, C, D. Sub-plot No. A has been described, as a toilet; B as a bathroom; C as Angan and D as Pucca Makan.

PW 1 is Raj Kaur who is respondent in this case. She in para-2 of her deposition stated that her father constructed a house consisting of three rooms, two Verandahs Angan, Toilet and Bathroom. She further stated that the house was a brick built with country tiles. She further stated that after construction of the house, therein her grandmother, mother, younger sister and father used to reside. Her mother died in that house and her younger sister died after her father was put in jail. Her grandmother had also died in that house. She further stated that her father had been in jail in the year 1972 and he was released in 1976. She further stated that on the day on which her father was arrested, the police put a lock in the house. She was aged about 9-10 years old at that time. The police intended to take them to the police station but two sisters expressed their intention to go to their grand mother''s place and were allowed to go. She further stated that in her house there were household articles like beds, chairs, tables etc. and documents. She further stated that the defendant had occupied the house but they did not return the household articles. In cross-examination she stated that her father purchased the land from somebody and all the properties were in that house.

The defendants did not cross-examine her either with regard to the description of the suit house nor cross-examined her on the point that the police had put a lock upon arrest of her father. It also stands admitted that Charan Singh was arrested in 1972. P. W. 1 was further not cross-examined on the point that the house in question was locked on the day on which her father was arrested. Those statements of P. W. 1 would therefore be deemed to be admitted.

In this connection, it is relevant to mention the DW3 (defendant No. 3) Isa Khan in para-1 of his deposition stated that he had purchased some lands from Roshan Ali. In para-7 of his deposition, he merely denied that the disputed house was constructed by Charan Singh. He in his deposition also did not say as to who constructed the house.

He alleged that in his sale deed existence of the house had been mentioned, which is not a fact. In paragraph 17 of his deposition he stated that he did not know in which year the disputed house was constructed. He did not see the construction of the house. He could not say as to whether a criminal case was instituted against Shri Charan Singh and whether in that house Charan Singh had ever remained or not. In para 24 of his deposition he admitted that in the disputed house, there are three rooms and Verandah. He stated that the said house had no longer a Khapraposh roof but he admitted that at the time of purchase the same was having a khaparposh roof. He stated that he constructed the roof of the house in 1977 wherefor he took permission of the Municipality.

DW-4 is Gurupado Mahto who is the cousin brother of Kali Charan Mahato. He admitted that when Roshan Ali purchased the house there existed a hut thereupon. This witness further admitted that now a new house was constructed by Isa Khan, after he purchased the said house. He in paragraph 4 of his deposition expressed his ignorance to the effect as to who had constructed the house.

It is pertinent to note that he claimed himself to be a co-sharer of Kali Charan Mahto. He admitted that the old Survey plot number of the house in question (now plot No. 347) was 593 upon which various persons have constructed their house. He further stated that Kali Charan Mahato has a son namely Basu who is alive. This witness further stated that Roshan Ali is aged about 30-40 years. It is therefore, clear that not only the defendants did not state as to who constructed the house but in fact admitted that there had been a khaparposh house on the said land. These admission on the part of the DW''s advances the case of the plaintiff-respondent.

Further from a perusal of the deeds of sale which have been marked as Ext. A and A/1 it appears that no reference has been made therein that a house had been existing thereupon and only reference which has been made therein is with reference to the entries made in the survey settlements record of rights.

The description of the properties in Ext. A/1 reads thus :

A piece of Raiyati Land measuring 0.01.10 Hector, being current survey plot No. 347 a, b, c, and d recorded in Khatian No. 78 Mouza Jugsalai, thana no. 1161, in Jugsalai, Nayabasti Mahallah, P.S. Jugsalai, Pargana Dhalbhum, sub-registration officer at Jamshedpur, District registration office at Chaibasa, district Singhbhum and bounded as follows :

North : Bhunaneshwar Ahir,

South : Alley, East-Road and West-Sheo Jalan, Annual rent re11/- only payable to the State of Bihar. Municipal Holding No. 302, Nayabasti Mahallah, Jugsalai.

In the sale deed the properties has been described as landed property and the vendor stated that he is in peaceful possession of the aforementioned land. Again in the operative portion of the sale deed it has been mentioned that the vendor being in need of money expressed his intention to sell the aforesaid land measuring 0.01.10 Hectare more particularly described in column 5 thereof and the purchaser having offered the highest price, therefor. Thus in the body of the said deed of sale neither the existence of any house has specifically been mentioned nor any statement has been made therein that the execution of the said deed of sale or his predecessor in interest had constructed the same.

In Ext. A which is the deed of sale also the same description had been given and the similar stipulations have been made. In fact in Ext. A the subject matter of the sale described as ''a piece of raiyati land.''

It further appears curious that in Ext. A Roshan Ali has not been described as a minor although the deed was executed by his father namely Khursid Ali. As noticed hereinbefore, DW-4 who examined himself on 25.2.1986 stated the age of Roshan Ali to be 35-40 years. It, therefore, does not stand to any reason as to how Roshan Ali was a minor when the deed of sale dated 2.2.1976 was executed and why the same was executed by his father.

It is, therefore, evident that the house in question had neither been constructed by the defendants nor their predecessor-in-interest.

It is true as has been contended by Mr. N. K. Prasad, the Learned Counsel appearing on behalf of the appellant that plot No. 347 has been recorded to be in possession of Kali Charan Mahto, but it must be noted that the title in respect of the said properly has been recorded in the name of Gurupada Mahto (DW-4). In fact the entire Khata No. 78 has been recorded in the name of Gurupada Mahto. The defendants have not explained as to how the plot in question being appertaining to Khata No. 78 stood recorded in the name of Gurupado Mahto.

On the other hand, P. W. 2 who was aged 62 years on the date of his deposition categorically stated that Charan Singh constructed the house about 39-40 years ago and he used to reside therein, In paragraph 10 of his deposition he stated that Charan Singh constructed the house after purchasing the same.

P. W. 3 is Mohal Lal. He also stated that a house was constructed on the suit land by Charan Singh about 40 years back and he had been living therein with his family members. He further stated that the land in suit was purchased by Charan Singh from Kripa Sindhu Mahato.

Mr. N. K. Prasad, drew my attention to the statements made in his deposition wherein he stated that house was constructed by Charan Singh after his purchase. But such minor contradictions are natural as the witnesses had been deposing in relation to matter which took place 30-40 years back.

P. W. 4 is Taiga Singh. He also stated that Charan Singh constructed the house about 40 years back and he had been residing therein with his family members. He further stated that Raj Kaur was born in that house and the second daughter of Charan Singh was also born and died therein. This witness further stated that in the year 1960 Charan Singh had been repairing the house wherefor he was prosecuted by the State and in the criminal case fine was imposed upon him. This witness further stated that Isa Khan forcibly entered into the house after Charan Singh was arrested. This witness also stated that Charan Singh had his goods in the aforementioned house. This witness is a resident of the same place.

P. W. 6 is Shiv Bachan Ram. This witness also stated that Charan Singh constructed the house after purchasing the same.

In paragraph 9 of his deposition he reiterated that the house was constructed 2-3 years after Charan Singh purchased the land and thereupon he constructed three rooms. He further stated that at the time of purchase, Charan Singh constructed a hut therein and he used to sell ''Pakauri'' etc.

P. W. 7 is Batti Bai alias Balwant Kaur. She stated that her residential house is 10 yards away from the suit house. She also stated that Charan Singh had constructed the house. She gave full description of the suit house. She further stated that in the year 1960 Charan Singh was prosecuted while he was repairing the house. She further stated that in that house the Charan Singh''s wife and mother died. She further stated that after Charan Singh was remanded to jail custody, his daughters had been residing with her. In paragraph 12 of her cross-examination she stated that Charan Singh came in possession of the land upon payment of Rs. 50/- which he came to learn from Charan Singh in the year 1942. This statement although hear-say in nature is admissible in evidence in terms of Section 32 of the Evidence Act. PW 8 Lal Singh also supported the case of the plaintiff.

Mr. N. K. Prasad, Learned Counsel criticised the evidence of the aforementioned witnesses by pointing out the P. W. 1 could not disclose the length and breadth of the suit properties nor she could state the amount of consideration paid by Charan Singh. This is natural inasmuch as, admittedly while she was dispossessed from the house, she was 8-10 years old and thereafter she had been staying with D. W. 7.

It has come in evidence that she was married six months after Charan Singh was released from jail custody. If she discloses her ignorance with regard to amount of consideration, evidently she had been speaking the truth. She is not thus a tutored witness.

It is true as has been pointed out by Mr. N. K. Prasad that there is no documentary evidence about the construction of the house or about payment of any lax etc. It has been pointed out by Mr. Prasad that the witnesses could not state about the plot number or survey number of the house. In my opinion in the facts and circumstances of the case, the same is not very material.

With regard to P. W. 5 the comment of Mr. N. K. Prasad was that he was co-accused and thus his evidence should not be relied upon.

Mr. Prasad has also pointed out that P. W. 7 and 8 are related to the respondent No. 1. In my opinion, the evidences of witnesses have got to be read as a whole. The evidence of witness are not to be construed only on the basis of the statements made by them in court but upon taking into consideration the facts and circumstances of the entire case. As noticed hereinbefore the circumstantial evidence is clearly against the appellants. If the predecessor-in-interest of the appellants had constructed the house, they would have specifically stated so. It was also obligatory on their part to state as to who constructed the house and when the house was constructed.

In this situation, it may also be noticed that son of Kali Charan Mahto is alive but has not been examined. An adverse inference has to be drawn against the appellants for his non-examination. He was the best witness to state as to whether his father had in fact constructed the house or had been in possession thereof.

There was no reason as to why the defendant did not examine him but instead examine Gurupado Mahto.

It is true that the plaintiff has not been able to file any document for proving possession but the same is also the case with the defendants. The defendants have not been able to prove a single chit of paper to show that Kali Charan Mahato and/or his father had been paying rent in respect of the land in question and/or Municipal and other taxes in respect of the house standing thereupon. At least the plaintiff had given some explanation for non-production of the documents i.e. when Charan Singh had been arrested, his daughters were dispossessed together with the household articles including documents.

No explanation whatsoever has been offered by the defendants as to why they could not have produced any documents to support their possession.

It is true that in the revisional settlement records of right the possession of Kali Charan Mahato had been noted. But as indicated hereinbefore, the same has to be considered alongwith the fact that owner of the house had been shown to be Gurupado Mahato. This discrepancy in the record of rights had not been explained. Further the record of right is no doubt admissible in evidence for proving possession and the presumption of correctness thereof which arises in terms of Section 84 (3) of the C. N. T. Act to the effect that the recorded tenant was in possession thereof on the date on which the record of right was published.

However that presumption is a rebuttable one and the effect of the entry made in the record of rights has to be considered upon judging the totality of the circumstances.

It must also be taken note of the fact that Charan Singh was arrested remained in jail for more than three years. Isa Khan as a police official was attached to Jugsalai Police Station where the suit house is situated.

It is also clear that when Charan Singh was arrested his daughters were only 9 years and seven years old.

It is strange that despite the fact that Isa Khan was a Havildar and he had litigation with the plaintiff, he could not say as to where Charan Singh used to live at the time of his arrest.

In my opinion, therefore, the nature of evidence advanced on behalf of the plaintiff is superior to that of the defendants.

The learned court below also relied upon the deposition of the witnesses executed on behalf of the plaintiff.

In Madholal Vs. Official Assignee of Bombay reported in AIR 1950 F C 21, it has been observed :

It is true that a Judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the Appeal court should not lightly interfere with the Judgment.

To the same effect is the judgment of the Supreme court in Madhusudan Das Vs. Narayani Bai reported in 1983 S. C. 114.

In this case the learned trial court had considered the testimonies of the witnesses examined on behalf of the plaintiff relating to construction of the house upon reading the evidences of the witnesses as a whole. I find that the findings arrived at by the trial court are reasonable and as such there is no reason as to why this Court would differ with the said findings on the aforementioned point, although, he may not be correct in proceeding to decide the suit on the. basis that Charan Singh had been able to show that he had been, in possession of the house in the year 1960 only in terms of Ext. 3 series.

It is true that in terms of Section 43 of the Indian Evidence Act, the judgment of the Criminal court may not be binding but ext. 3 has to be considered to be of the nature of corroborative evidence to the oral evidences of the witness who stated that Charan Singh had been in possession of the house in question and while he had been carrying on repair thereof he was prosecuted. These evidences on the part of P. W.''s are merely corroborated by Ext. 3. Thus although, the Ext. 3 is not admissible in evidence for the purpose of proving the fact that Charan Singh had been in possession of the house in question, the said fact was proved by the witnesses examined on behalf of the plaintiff.

In Ramadhar Chaudhary and Others Vs. Janki Chaudhary, a Division Bench of this Court has held :

From the above review of the law on the point we find that a judgment of a criminal court is admissible to prove only who the parties to the dispute were, and what order was passed. Facts therein stated or statements of the evidences of the witnesses examined in the case, or the finding given by the court are not admissible at all. Technically such judgments are admissible as not being between the same parties, the parties in the prosecution being the State on the one hand, and the prisoner and some third party; and substantially, because the issues in a civil and criminal proceedings are not the same, and the burden of proof rests in each on different shoulders. Even an admission cannot be proved by a recital in such a judgment. Therefore, a proceeding of a criminal court is not admissible as evidence: a civil court is bound to find the facts for itself (see Dinomoyi V. Brojomobim, Purnima Debya, v. Nand Lal Ojha, Dundbabadur Singh V. Durga Prasad Singh, Kesho Prasad V. Mt. Bbagjpna Kuer, Harihar Prasad V. Mt. Janki Dulari and Keramutoolab Choudhary V. Gbolam Hossein. For these reasons the judgments, exhibits N. and N1, are not admissible to prove the parentage of the plaintiff, and as such they must be ruled out of consideration.

In Mundrika Kuer Vs. President, Bihar State Board of Religious Trusts and others reported in 1968 BLJR 197 a division Bench of this Court has held :

The acquittal of the petitioner in the criminal case (Annexure-A) was very much relied upon; but it is well settled that that acquittal or conviction in a criminal case has no evidentiary value in a subsequent civil litigation except for the limited purpose of showing that there was a trial resulting in acquittal or conviction, as the case may be. The findings of the criminal court are inadmissible-see Anil Behari Ghosh V. Smt. Latika Bala Dass, Ramadhar Choudhary V. Janki Chaudhary and Holngton V. Hewthorn & Company, Limited.

But in this case as noticed hereinbefore, the fact that the Charan Singh had been prosecuted under the Bihar Restriction of Uses of Lands Act, not being disputed and the said fact, as noticed hereinbefore has been proved by the witnesses. The deposition of the witnesses to the aforementioned extent in my opinion, is trustworthy and can be relied upon.

So far as the submission of Mr. Prasad to the effect that DW 6, 7 and 8 are interested witnesses, it is relevant to note the decision of the Supreme court referred to Madhusudan''s case (Supra) again wherein the Supreme court held as follows :

It is not open to the court to reject the evidence without anything more on the mere ground of relationship or favour on possible prejudice.

For the reasons aforementioned, I am of the view that the learned court below has rightly decreed the suit of the plaintiff. In the result, there is no merit in this appeal which is accordingly dismissed but in the facts and circumstances of the case, there will be no order as to costs.