Kanchan Teli and Another vs Moga Mahton

Wort, J.—This appeal arises out of an action in which the plaintiff originally claimed possession of the land in suit as raiyat as against the defendants. He claimed to have been settled on the land by the landlord in 1920. The settlement by the landlord was after the original tenant had abandoned his holding. At the time that the original tenant abandoned the holding, an under-raiyat (who is the defendant in this case) was in possession. The plaintiff came to Court asserting that the defendant became his under-tenant, I assume by attornment.

It is important to notice that the defence that the defendant set up was that he had never been the under-tenant of the plaintiff, that he had been in adverse possession for more than twelve years and that the plaintiff''s suit was therefore barred by limitation.

Two questions arose in the Courts below and they have been discussed at considerable length in this Court. The first question was whether the civil Court had jurisdiction, and the second was that the action was barred by limitation, or, to express it in other Words, the defendant had acquired an adverse title. The trial Court decided that the matter, being governed by Section 139, Chota Nagpur Tenancy Act, the civil Court had no jurisdiction; and the suit was dismissed, although there was a discussion with regard to some of the issues which had been framed in the case amongst which was "Is the gait barred by limitation?"

The learned Munsif came to the conclusion that the defendant had been in possession for upwards of twelve years and therefore the plaintiff could not recover possession quite apart from the question of jurisdiction.

The appellate Court reversed the decision of the trial Court on both the questions. In second appeal it is contended by Mr. S.N. Bose on behalf of the defendant-appellant that the matter of jurisdiction must be determined only by the allegations in the plaint. There is no dispute that a plaint in the ordinary cases would determine the jurisdiction: that is to say, that a Court would be justified in rejecting a plaint on the allegations contained therein. But what we have here is a different state of affairs. The Court did not reject the plaint.

It went on with the trial of the case and then proceeded to decide the issues and discovered for the first time that the facts were not as alleged by the plaintiff but as alleged by the defendant; and those alleged by the defendant raised a question of title. Ordinarily therefore the jurisdiction of the Deputy Collector would be oustad. Had we to imagine that the Court had rejected the plaint and the plaintiff had to have recourse to the Court of the Deputy Collector, the Deputy Collector would have then to go into the matter, discover the question of title, and come to the conclusion that he had no jurisdiction. The matter in that event would go back again to the civil Court, with possibly an amendment of the plaint and the civil Court would proceed to consider the question and come to its conclusion thereon. Now in the result it comes to this. Having investigated the case and having decided that a question of title was raised although not alleged by the plaintiff, would the Court have been justified in allowing the plaintiff to amend his plaint?

This would depend, entirely on whether the defendant would be so seriously prejudiced as to make it unjust to allow the plaintiff to amend the plaint. I have stated the issues were framed by the Court; and not only from those but from the statement by the Court of the allegations of the defendant, it is quite clear that there was no prejudice so far as the defendant was concerned, as the defendant had continually urged that the action was barred by limitation and that he had been in possession for more than twelve years indeed from the time the original tenant had surrendered the land, and that therefore as against the plaintiff and as against the landlord he had acquired an adverse title. Mr. Bose seeks to distinguish the question of adverse title from that of limitation, but it is plain that no such difference can be drawn.

If the action was barred by limitation, the adverse title of the defendant would be established and it is only by reason of the decision of that issue in favour of the defendant that such a title could be established. There is no other way of asserting it or proving it. I should therefore hold that had the plaintiff asked the trial Court to allow him to amend the plaint land had the Court allowed the amendment, no serious prejudice could have been asserted as the defendant came prepared to meet the case which the plaintiff would be asserting by the amendment. In addition to that, having regard to my view as to which Article of the Limitation Act applies, the defendant had already taken upon himself the burden of establishing his possession for more than twelve years.

It seems to me therefore that although as a general proposition it may be said that the question of jurisdiction was to be determined by the allegations in the plaint it cannot be said after the Court on an investigation of the case comes to the conclusion that it has jurisdiction, that there was no jurisdiction in the Court merely because of the absence of an assertion in the plaint. I confine my decision on this point to the state of affairs such as existed in this case, namely, that the question of the true facts of the case has been investigated by the Court assuming jurisdiction. In this action I might say that if there was no substance in the point, it was remarkable that the defendant did not raise the question at the earliest possible stage. It could have been raised by him before the action was tried. That however is quite irrelevant and does not dispose of the matter in any way.

The next question is whether Article 142 or Article 144 applies. There are a number of decisions; but quite apart from any decision the article itself is perfectly clear. In Muhamud Amanulla Khan v. Badan Singh (1890) 17 Cal 137, delivering the opinion of their Lordships of the Privy Council it was stated that there was a dispossession or discontinuance of the possession of the plaintiff within the nearing of Article 142. That was a case where once having been in possession of certain Government property which had been resumed the plaintiff declined to take a further settlement from the Government, and, the property having been settled with the defendant ultimately, the plaintiff brought an action for recovery of possession.

It was held that there was a discontinuance of possession under those circumstances. Now can it possibly be said in this case that there was either discontinuance of possession or dispossession? The plaintiff does not assert that he was dispossessed, the defendant does not assert that he dispossessed the plaintiff. But what the defendant does assert was that he began to prescribe against the superior landlord; and therefore from that time, prior to which the plaintiff got possession, the period of limitation began to run both as against the landlord and as against the plaintiff, which period eventually by the time the action was brought had developed into such as would give him adverse title. No one can possibly say in the circumstances that there was any discontinuance of possession, because according to the defendant himself the plaintiff had never got into possession. The defendant was already there and the plaintiff came on to the land as the result of the settlement.

Now, it is true that the question of whether Article 142 or Article 144 applies has to some extent to be judged by the allegations in the plaint as was in the case of Shiva Prasad Singh v. Hira Singh 1921 Pat 237, where the plaintiff asserted that he had been dispossessed. But that does not necessarily conclude the matter, because the question of the onus (with which this matter is most particularly concerned) is to be determined upon the allegations of the plaintiff and the defendant. If the defendant admitted that he had dispossessed the plaintiff, then quite clearly Article 142 would apply; but if, as in this case, he asserted that the plaintiff had never been in possession, that he (defendant) had been there and had been prescribing against him (plaintiff) it seems to me abundantly clear that the case does not come under any of the authorities holding on the facts of particular cases that Article 142 applied. It is a case which is otherwise provided for by the Limitation Act and therefore Article 144 applies.

Now the question is whether in those circumstances the defendant had got an adverse title as against the plaintiff. It is clear that if the date, as the Judge in the Court below has held, was August 1920, that is to say, from which limitation would run, no such title could be claimed by the defendant and the action would not be barred by limitation. But the defendant asserted that he was prescribing against the plaintiff before 1920 in the sense that he was prescribing against the proprietor or landlord. It was suggested in the Court below that time ran from the date on which the land was surrendered by Rupan Lal. The contention put forward in this Court is substantially the same. The learned Judge in the Court below has said in effect that the onus was on the defendant; that there is no evidence at all in the case when Rupan Lal surrendered the land, and therefore it cannot be said that the date from which limitation ran was before 1920, or, in other words, no prejudice had been proved and therefore it must be assumed that limitation ran from 1920.

Now, that in my judgment would be sufficient to dispose of the case; but the question which was argued by Mr. Bose must be decided. His contention is that the moment Rupan Lal the original tenant, gave up possession or surrendered the land, he became a trespasser and from that moment he began to prescribe against the landlord and that the period between that date and August 1920 (whatever it may have been) was to be added to the period between August 1920 and the date when the action was brought. There seems to be two complete answers to the argument. The first was that given by the learned Judge himself, namely, that there was no evidence that Rupan gave up possession. On this finding, Mr. Bose''s only argument is that he was taken by surprise by reason of the statement of the plaintiff himself that he had been in possession for thirteen years or so. The Judge in the Court below has come to the conclusion that that statement cannot be taken literally and I should hold that it is impossible to disturb the learned Judge''s finding on that. The learned Judge was entitled to consider the evidence; he was entitled to take into consideration the fact that the plaintiff was an illiterate person and that when he was speaking of 13 years he was not speaking of any exact date on which he had possession, and furthermore, there was one other construction of that evidence which however is not a question for this Court.

It might be supposed that the witness was speaking from the date on which he was giving evidence. That is merely a speculation which would further support the contention that the learned Judge was entitled to put what construction he cared to on that evidence. But the point to be met is whether Mr. Bose''s client was misled by that evidence. In my judgment that is an impossible contention. An issue was settled even in the trial Court as to whether the action was barred by limitation; and if the defendant came to Court with less evidence than he was in a position to call then he has himself to blame. But I assume and I must assume for the purposes of this case, that he called all the evidence he could in the circumstances. That is one answer to the question.

The other answer seems to be equally clear. When the defendant became a trespasser (and I assume for the purposes of this case that he did so), it cannot be said that he was prescribing against the landlord as regards his proprietary right, for according to Mr. Bose his argument depends upon that contention. He goes into possession as an under-raiyat under Rupan Lal and remains in possession. There is no evidence (and it is really a question of fact) what attitude the landlord took.

There is equally no evidence and the defendant has never attempted to prove that he had asserted adverse title against the landlord, asserted in the sense of attempting to prescribe against the landlord as regards the proprietary right. The most that could be said was that from the time that Rupan Lal gave up possession the defendant had some incipient right; as raiyat that is most that could be said: I am not holding however that that was so. It is impossible to say on the facts as established in the Court below that there was assertion by the defendant of any right as against the landlord.

It was only in such circumstances (where Such an assertion was made) that it could be said that the period between the time when Rupan Lal gave up possession and the time when the plaintiff got possession under his settlement should be added between August 1920 and the date on which the suit was brought. In these circumstances it seems to me that the appeal fails and must be dismissed with costs. Leave to appeal is refused.