Kaladhari Singh vs Jibachh Mishra and Others

Varma, J.—This is an appeal on behalf of the plaintiff. The defendants-respondents are the three sons of Manohar Misra of Barhampur where the subject-matter of the dispute is situated. The disputed property is 1 katha 19 dhurs of land included in plot No. 496 with an area of 3 kathas 4 dhurs. The suit was for a declaration of the plaintiff''s title to and for confirmation or, in the alternative, recovery of possession over the disputed land. The Courts below have dismissed the suit of the plaintiff on the ground that the defendants'' title to the land had matured by adverse possession. The plaintiff has came up in second appeal. Mr. Manuk, appearing on behalf of the appellant, has urged chiefly that on the findings of the Courts below, no case of adverse possession can be made out, and secondly, that they have acted illegally in relying on a piece of evidence which is not admissible. The litigation with regard to this piece of land has a long history and it redounds to the credit of the litigious zeal of the parties that for such a small strip of land they have been engaged in it for nearly 30 years having moved about half a dozen Courts presided over by about a dozen different Judges.

In order to understand the point raised by Mr. Manuk, it is necessary to give a short statement of the litigation in the past with respect to this land. In the year 1908 three mortgage suits were filed by Brajnandan Singh, the father of the present plaintiff, against Kallar Jha and his bro. thers, based on three bonds executed in the year 1902. These suits were decreed and the plaintiff''s father purchased, amongst others, this land in dispute in execution of one of the decrees, the delivery of possession including the entire plot No. 496. It appears that one Nathu Shah, a bataidar of the plaintiff''s father, was compelled to file a petition against the defendant''s father and defendant 1 u/s 144, Criminal P.C., because they had committed certain acts of aggression with respect to this land. The proceeding was converted into one u/s 145 and ultimately ended against the defendant''s father and defendant 1 on 10th September 1910. It is significant that no suit was filed within the period of limitation against this decision of the Criminal Court, and a great deal turns upon this aspect of the whole case.

It appears that aggression was again started near about the year 1916 on account of which the plaintiff''s father had to file a suit against defendants 1 and 2 with regard to the land included in plot No. 496, the disputed portion covering an area of 25 dhurs situated partly towards the north and partly towards the west. The nature of the encroachment complained against was that the defendants had put heaps of cow-dung upon the land. In that suit the defendants contested on the strength of an unregistered kobala of 1901 alleged to have been executed prior to the mortgage deed executed in favour of the plaintiff''s father. The suit was dismissed by the trial Court which, in coming to its conclusions, relied upon the results of a local inspection held by the Court itself on 5th August 1917. We have no note of that local inspection on the records of the present case, although the Courts below have relied upon the facts as mentioned in the judgment in the suit of 1916. That judgment is dated 19th February 1918, and the facts taken there, from are that there was a mud wall house on the north, a heap of cow-dung almost like a small hill was stacked towards the south-west of plot No. 496, that the mud had been taken from the middle of the plot (the area is not given but the depth is said to be 1 cubit) and that there was a well in the plot. Of these facts the first two were included in the subject-matter of that dispute while the other two facts were not involved therein.

On 13th January 1919, the Appellate Court set aside the judgment of the trial Court, holding that the kobala relied upon by the defendants was not genuine and that no suit having been filed against the decision in the 145 proceedings, the title of the defendants was extinguished with regard to the hut built upon the disputed plot. The delivery of possession was thus given to the plaintiff''s father with regard to two-thirds share of the defendants (I have already mentioned that the land is not subdivided into sub plots). Then there was some further trouble, it appears, on behalf of one of the brothers who was not impleaded in the previous suit. The plaintiff filed a suit, No. 23 of 1921, and took the precaution of impleading all the three brothers as defendants. This suit was decreed on 8th March 1931, and ultimately delivery of possession was effected with regard to the remaining one-third of the plot in 1931. Fresh troubles seem to have arisen in the beginning of the year 1932 and it appears that on 12th January 1932 proceedings u/s 144, Criminal P.C., were initiated with regard to the entire plot No. 496. The present defendants were made the defendants first party and the plaintiff was the second party. That order was made absolute against the first party on 19th February 1932. The matter did not end there and, it appears, that on account of some further troubles the plaintiff initiated proceedings u/s 107, Criminal P.C., but those proceedings were dropped, as a result of which the present suit, out of which this second appeal has arisen, was instituted on 20th December 1932.

Now, the lower Appellate Court has come to the following findings in the present case: After accepting the case of the defendants that they had been in continuous possession of the entire plot No. 496 since their kobala of 1901 and had exercised acts of possession by planting trees, stacking straw and logs of wood and by removing earth there from, the lower Appellate Court came to the following finding:

It is by no means improbable that the defendants have been storing their straw, cow-dung and other materials on the disputed land for a number of years, as alleged by them

and that

they had, apart from the pucca well, at least a heap of cow-dung, straw and piles of brickbats on the present disputed land in the year 1931.

On these findings the learned Judge says:

I am satisfied from the evidence that the defendants have proved their actual possession over the land in dispute for a continuous period of more than 12 years.

In coming to this conclusion it is clear that the lower Appellate Court has relied mainly upon the results of the local inspection held in the suit of 1916; and to this, as at present advised, Mr. Manuk rightly takes exception. Even the learned advocate appearing on behalf of the respondents, could not justify the inclusion of the results of the local inspection in 1916 in the present case; and he had tried to support the judgment of the Court below by referring to the evidence of Mr. Biswas (P.W. 3); but that witness was obviously speaking with regard to the state of affairs existing in the year 1931. The evidence of Mr. Biswas could not go to support the results of the local inspection in 1916, which has wrongly been included in the present case. Mr. Manuk urges that, although he cannot question the findings of fact arrived at by the Courts below, the question is whether the inference drawn by them is correct; and relying upon the decision in Framji Cursetji v. Goculdas Madhowji (1892) 16 Bom. 338 he contends that on the findings of the particular acts of possession, it could not be held that the defendants had acquired any right by adverse possession. In that case a small piece of land being of no present use to its owner and being convenient in many ways to his neighbour was made use of by the latter in various ways without objection for more than 12 years.

A privy and sheds for cows, goats, fowls, etc., and a hut for a ghariwallah--all however structures of flimsy and purely ternporary character--were said to have been constructed and maintained for many years on the said piece of land; and it was contended that such user by the neighbour of the owner of the land, amounted to adverse possession against the owner. But it was held by their Lordships that such user as this was insufficient to give a title to the land by adverse possession. If I may say so with great respect, their Lordships rightly observed as follows:

In this country such a user excites no particular attention. It is neither meant to denote, nor understood as denoting--on the side or the other--a claim to the ownership of the land. Where such and no more is the case, it would be altogether wrong to hold that a claim to title by adverse possession has been made out. These cases are even more frequent in the mofussil than in Bombay itself, and there such acts of user are never con strued as founding a claim to the land by adverse possession.

To the same effect are the decisions in Osman Saleh Mohammad v. Khannomal Saltramdas A.I.R (1927) Sin. 144 and Muhammad Amin Khan v. Balanda A.I.R (1929) Lah. 71 relied upon by Mr. Manuk. Mr. B.C. De, appearing on behalf of the respondents, urges that merely because the acts of possession relied upon by the Courts below can be regarded as of flimsy nature, it would not amount to a proposition of law. The finding of adverse possession in favour of his clients should not be disturbed. He contends that the nature of the rights exercised by the parties and the relationship between them will have to be looked into in order to see whether the acts were permissive or so trivial as not to be noticed. This is so; but one has to remember that in a case of this nature where the land is adjoining the house of the defendants and the plaintiff is not a resident of that looality where the land situates, these little acts of possession could not be effectively taken notice of at once by the plaintiff against whose interest they were exercised. The present case is on all fours with the case reported in Framji Cursetji v. Goculdas Madhowji (1892) 16 Bom. 338.

In the acts of possession found by the Courts below, which I have, already stated there is only one item on which the lower Appellate Court has laid stress, viz. the existence of a well in the plot. A well is certainly more permanent than a hut; but with regard to this other considerations arise, i.e. was the construction of the well an act of possession or, when was it built? From the facts mentioned above, it is clear that in 1910 the Criminal Court found that the plaintiffs'' father was in possession of plot No. 496; and whatever rights the defendants might have were extinguished in the year 1913 they not having filed any suit against that decision within the period of limitation. Therefore, if the well was constructed before 1910 then by reason of that decision it became the property of the plaintiff. The lower Appellate Court has not gone into this matter from this point of view. The defendants'' case in the written statement was that the well was constructed soon after the unregistered kobala in their favour in the year 1901; and the lower Appellate Court says:

As for the pacca well, the defendants'' statement that it was constructed by them soon after their kobala has not been disproved in any way.

The presence of this well could not therefore be said to be an act of adverse possession after 1913. That being the position with regard to the Well, there is nothing to distinguish this case from the ease reported in Framji Cursetji v. Goculdas Madhowji (1892) 16 Bom. 338. Mr. De then contends that the plaintiff omitted this part of his claim in the previous suit and therefore the present suit was barred under the provisions of Order 2, Rule 2, Civil P.C.; but a fresh cause of action has accrued to the plaintiff since then and there is nothing to indicate that the previous suit was filed when the plaintiff was dispossessed in respect of the entire plot No. 496.

I would therefore set aside the judgment and decree of the Court below and decree the suit with costs throughout. Mr. B.C. De asks for leave to appeal under the Letters Patent; but as I have already said, the subject-matter of dispute is rather very insignificant and the litigation has gone on for nearly 30 years, and it is neither a case of public importance nor does it raise any complicated question of law. I do not feel justified in granting leave to appeal in this case. Leave to appeal is refused.