Janak Singh and Others vs Adya Singh and Others

Fazl Ali C.J.

This is an appeal from a decree of the Additional Subordinate Judge of Monghyr reversing the decision of a Munsif of Monghyr. The suit which has given rise to this appeal related to 34 bighas 9 kathas and 16 dhura of land in mauza Rahatpur tauzi No. 1407-939. These lands appertained to a khas mahal area and the plaintiffs'' case was that they had received settlement thereof from the defendants second party who are maliks or farmers of the village and their names had been recorded as tenants in the papers which were prepared during the khas mahal survey of 1926-1927 and 1931-1932. Subsequently there was a quarrel between them and the landlords, as a result of which the latter granted fabricated receipts and hukumnamas to the defendants first party and ultimately the names of the latter were recorded in the survey proceedings of 1937-1938. After these proceedings there was a proceeding u/s 144, Criminal P.C., with regard to the disputed land. No final order was passed in this proceeding as there was a tanaza pending between the parties before the Settlement Officer. Ultimately the tanaza was decided against the plaintiffs and the defendants first party dispossessed them on 25th Kartik 1346.

The suit was contested by defendants first party whose case was that the disputed land never belonged to the plaintiffs; that those lands had been settled by the defendants second party with the defendants first party and that they had been in peaceful possession thereof for a long time. It was also pleaded by the defendants first party that the suit was barred by limitation.

The trial Court decreed the plaintiff''s suit but the lower appellate Court has reversed the judgment of the trial Court and dismissed the suit holding among other things that the suit is barred by Article 3 of Schedule 3, Bihar Tenancy Act, which provides a period of two years as the period of limitation for a suit to recover possession of land claimed by the plaintiffs as raiyats and further provides that the period of limitation shall run from the date of dispossession. The lower appellate Court has also held that on the merits the plaintiffs are not entitled to succeed and in arriving at this finding it has remarked that the presumption arising from the latest survey entry has not been rebutted. The plaintiffs have now preferred this second appeal.

There can be no doubt that the judgment of the lower appellate Court in so far as it relates to the merits of the case, is open to objection. The learned Additional Subordinate Judge has failed to realise that the entries upon which the defendants first party relied were made in papers prepared by the khas-mahal. These entries cannot be used as presumptive evidence u/s 103B, Tenancy Act. They can certainly be treated as evidence but it cannot be presumed that the entries are correct. But it seems to me that the finding of the learned Additional Subordinate Judge on the question of limitation is sufficient to conclude the appeal. The learned Subordinate Judge has virtually held that the suit was barred by limitation on the plaintiffs'' own allegations. Those allegations have been summarised in his judgment in these words:

In the present suit the plaintiffs'' case is that the landlord defendants second party have been trying to get rid of the plaintiffs for a long time. In fact according to the plaintiffs as long ago as 1926 the landlord tried to dispossess the plaintiffs. Then it is the plaintiffs'' case that since the landlords bear enmity with the plaintiffs they got the names of the defendants first party entered in respect of the disputed lands in survey in 1937-38 and the reasons for this was that the landlords wanted the plaintiffs to depose falsely in a criminal case and the plaintiffs refused. This evidence the learned Court has held to be unrebutted and proved. It follows from this that the entry of the name of the defendants first party in 1937-38 survey records was the direct result of the action of the landlord himself. Having done this the landlord then proceeded to give settlement to the defendants first party and supplied him with hukumnama receipts, etc. Armed with all these, the defendants first party proceeded and dispossessed the plaintiffs. The Patna ruling I have referred to above thus fits in every respect.

The Patna ruling on which reliance was placed by the learned Additional Subordinate Judge in deciding the case is reported in Har Dayal Bhagat v. Nathuni Bhagat AIR 1935 Pat. 372. In that case it was held that if a person who goes on the land armed with a settlement from the landlord turns out the raiyat and dispossesses him, such dispossession is by the landlord and that in order to apply special limitation it was not necessary that the dispossession of the raiyat must be by the landlord himself or by his hired servant. In other words it was held that if the landlord authorises a person by making the settlement of the lands with him to dispossess a raiyat and that person armed with that settlement dispossesses him, the dispossession was by the landlord.

The view expressed in this case is supported by several decisions of the Calcutta High Court and it may be taken to be well settled that if a landlord acting in collusion and conspiracy with another person purports to grant settlement to that person in respect of certain lands which are in possession of a tenant and if that tenant is dispossessed by the alleged settle acting in concert or collusion with the landlord then the dispossession may be regarded as dispossession by the landlord so as to attract the provisions of Article 3 of Schedule III, Bihar Tenancy Act. The only question is whether in the present case there was justification for the learned Additional Subordinate Judge in holding that the plaintiffs had set up the case of collusion between the landlord and the defendants first party. Our attention was directed in the course of the argument to para. 6 of the plaint which runs as follows:

That defendants Nos. 1 and 16 filed objection before the Settlement Officer of the Khas Mahal at the time of the said survey record of rights with various false allegations and they filed fabricated and false receipts and also hukumnamas granted by the defendants second party who were and are in their collusion to show that they were in possession of the suit land and hence defendants first party were recorded in the survey record of right of 1937-38.

This paragraph does not contain the whole of the plaintiffs'' case on the point. Apparently the learned Additional Subordinate Judge has pieced together the statements made by the plaintiffs in their pleading and in the evidence and has shown that their own case was that the defendants first and second parties had acted in collusion and concert and that the plaintiffs had been dispossessed as a result of such action on their part. It seems to me therefore that in substance the learned Subordinate Judge has correctly reproduced the case of the plaintiffs in his judgment and was right in holding that upon the plaintiffs'' own case the suit was barred by limitation. In this view I would dismiss this appeal, but there will be no order for costs in this case.

Reuben, J.

I agree.