Jageyanand Pande and Others vs Girjananda Pande and Others

Chatterji, J.—This appeal arises out of a proceeding u/s 106, Ben. Ten. Act where an entry in the revisional Record-of-Rights in the exclusive name of the defendant in respect of survey plot 2425 was sought to be altered. The Settlement Officer decreed the action in part and directed that an area of 9 dhurs and 12 dhurkis on the southern side of plot 2425 be considered as belonging to both the parties in equal shares, and that 5 dhurs and 3 dhurkis on the northern side be considered as belonging to the defendants only.

In appeal the Special Judge set aside the Settlement Officer''s decision and directed that the Record-of-Rights be left unaltered. He considered the evidence of both sides in detail including the original khatian of the survey of 1902-03 and stated that the evidence offered by the plaintiffs about present possession of the disputed land and the house seemed to be very weak, while the evidence offered about present possession on the side of the defendants was much stronger.

Ultimately he arrived at the following conclusion:

The evidence on the record seems to me to prove conclusively that Jagyanand (that is the plaintiff) ceased to reside in Arrah more than 20 years ago, and that after his departure Mathuranand (the defendant''s father) built the two-storeyed house with which we are now concerned, and that Jagyanand has had no concern with that house since it was built, and that Mathuranand and after him Girjanand has always been in exclusive possession of that house. It seems to me, therefore, that the Record-of-Rights as originally prepared was correct and should not be altered.

It is urged by the learned Counsel for the appellant that the appellate Court was not justified in holding that the defendant held exclusive possession and that in any event in the absence of a finding of an ouster of the plaintiff, who claimed the property as a cosharer, for the statutory period of 12 years, he was wrong in setting aside the decree of the trial Court. It must be conceded that the decision of adverse or exclusive possession based on an inference of facts is open to second appeal as a legal conclusion to be drawn or not: Lachmeswar Singh v. Manowar Hossein [1892] 19 Cal. 253.

In fact the proper legal effect of a proved fact is essentially a question of law as held by their Lordships of the Privy Council in Nafar Chandra Pal v. Shukur Sheikh AIR 1918 P.C. 92. But I am not sure that the facts found do not warrant the inference of exclusive possession. Even if the expression "exclusive possession" be taken as meaning sole physical possession as contended for by the learned Counsel for the appellant, still the finding of fact arrived at in the present suit conclude the present appeal having regard to the scope of a proceeding u/s 106, Ben. Ten. Act.

In a suit u/s 106, Ben. Ten. Act, the Revenue Officer is confined to the question of possession and cannot be asked to adjudicate upon the title of rival claimants. What, the Revenue Officer has to go upon primarily is the question of actual possession in making an entry in the Record-of-Right and therefore the scope of a suit or proceeding u/s 106, Ben. Ten. Act to alter an entry so made must also be limited to the question of possession.

This view receives support from the case of Mohunt Padmalav Ramanuja Das v. Lukmi Rani 12 C.W.N. 8 followed in Mt. Asrufannessa Khatun and Another Vs. Hem Chandra Chaudhury, and a decision of this Court in E.A. Moore v. Gulab Ghand AIR 1923 Pat. 213. It is therefore clear that the scope of the present proceeding is limited to the fact of the present or existing possession.

Now, the case of the plaintiff is to be found in para. 3 of the plaint which runs as follows:

The plaintiffs'' ancestor, Lachhmi Narayan Pande, and the defendants'' ancestor, Bhagwan Datt Pande, acquired the said milki (rant free) house and began to reside in this town. On their death, Jagayanaud Pande, one of the plaintiffs, and Mathuranand Pande, father and ancestor of the defendants, continued to live in the and milki house. On the death of Mathuranand Pande, the said milki house has as usual been in the possession and occupation of the plaintiffs and the defendants in equal shares or halves.

Thus according to the plaintiffs'' case they were in actual physical possession of the disputed house in equal shares or halves. But the learned Judge of the Court below found that the plaintiff ceased to reside in Arrah more than 20 years ago, that the two-storyed house in dispute was built by the defendant''s father after his departure and that the plaintiff has had no concern with that house since it was built and further that the defendant''s father and after him Girjanand had always been in exclusive possession (taken in the sense of sole physical possession) of that house; therefore even if it be conceded that the plaintiff had, in some previous time interest in this property as a cosharer, and a subsisting title not extinguished by the assertion of a hostile title or ouster for a period of 12 years his remedy lies in a properly constituted suit seeking a declaration of title in the civil Court.

But all the same, there can be no escape from the conclusion that the defendant has been in sole physical possession of the disputed property to the exclusion of the plaintiff who ceased to reside in the town and therefore although the plaintiff''s title may not be affected, still the original entry in the Record-of-Rights must be allowed to stand.

I am satisfied in the circumstances that the decision of the learned appellate Court is correct and the appeal must be dismissed with costs.

Fazl Ali, J.

I agree.