Kirat Singh and Others vs Sheojatan Singh and Others

Dawson Miller, C.J.—This is an appeal under the Letters Patent from a judgment of Mr. Justice Kulwant Sahay overruling the decision of the Subordinate Judge and dismissing the suit.

The plaintiffs sued for a declaration of title to two plots of land numbered Survey Plots Nos. 205 and 206 and for possession by ejecting the defendants.

The Munsif dismissed the suit. The Subordinate Judge on appeal decreed, the suit with regard to one plot, namely, Survey Plot No. 205. Oh second appeal the learned Judge of this Court set aside the decree of the Subordinate Judge and restored that of the Munsif.

The plaintiffs have appealed and contend that the lower Appellate Court, having found in favour of the plaintiffs'' title and possession, the case was concluded by findings of fact which were binding on this Court. The appeal is confined to plot No. 205.

The plaintiffs'' case was that they were mukarraridars of a takhta bearing Tauzi No. 471 in Mauza Hasanpore Pipra under a mukarrari lease granted to the father of the first plaintiff by one Mohar Sinha, an ancestor of the defendants who still live in the neighbourhood and who according to the plaintiffs have encroached upon the plaintiffs'' land in plot No. 205. It has been found as a fact, and is no longer disputed, that this plot is comprised within the area of the plaintiffs'' grant and that the plaintiffs'' title has been established. It has also been found that the plot, in question is a piece of waste land having a bamboo clump thereon and that it is of such a nature that it is unfit for actual enjoyment. By this, I take it, it must be meant that the land is not fit for actual enjoyment as cultivable land because it is obvious that the person in possession of the land would at least have enjoyment in the bamboos growing thereon.

In the Survey and Settlement operations which began in 1913 and ended by final publication of the Record of Rights in 1914 the plot in question was recorded as in the possession of the defendants and it is the plaintiffs'' pleaded case that it was at that time that they -were dispossessed by the defendant. If such a case could be made out then it follows that the plaintiffs must succeed, for it has been found by all the Courts that the plaintiffs'' title has been established.

The Munsif rejected the plaintiffs'' evidence, and accepted that of the defendants on the question of possession within 12 years of the suit. The Subordinate Judge on appeal reversed this finding as to plot No. 205 on two grounds. In the first place he stated that the defendants'' evidence regarding possession could not be accepted as the two witnesses called on their behalf had no knowledge or idea as to who were in possession. Their evidence, therefore, must be rejected, lie then held without discussing the plaintiffs'' evidence that the land being parti kadim and unfit for actual enjoyment, there was a presumption that the plaintiffs who had title to the land were also in possession of the same and that there was no satisfactory evidence to rebut that presumption. He then added "In the circumstances of this case I must hold-that the plaintiffs have subsisting possession and title within 12 years." In the second place he went on and stated: "I also find that the plaintiffs were dispossessed after the survey which took place in the year 1321F and was finally published on the 15th October, 1914, that is, within 12 years of the suit."

This judgment has been criticised by Mr. Justice Kulwant Sahay in second appeal on the ground that the Subordinate Judge does not find that the plaintiffs or their ancestor in fact ever took possession of the plot in question after they obtained their mukarrari and in the absence of a finding of actual possession, mere proof of title would not found any presumption of a continuing possession. This criticism would, I think, in most cases be quite just, for it is for the plaintiffs in a case of ejectment to prove not merely their title but farther their possession within 12 years. The learned Subordinate Judge, however, did find that the plaintiffs were dispossessed after the survey and within 12 years and there can he no dispossession without a prior possession of the party dispossessed. It must be taken, therefore, on the findings come to that the plaintiffs were in possession and were, ousted by the defendants within the statutory period.

Mr. Justice Kulwant Sahay also deals with this finding and criticises it on the ground that it is at variance with the Record of Rights which raised a presumption in the defendants'' favour which the learned. Subordinate Judge does not deal with, and further, on the ground that the Subordinate Judge nowhere states upon what evidence, if any, apart from the presumption his finding of dispossession is based, and finally comes to the conclusion that it is not based upon any legal evidence. In the result he set aside the decision of the Subordinate Judge and restored that of the Munsif.

In appeal before us the learned Counsel for the appellants contends that the finding of the first Appellate Court, although laconic, is still a finding of fact and should not be disturbed, and further he points out that there was evidence upon which such a finding could be justified, as one of the plaintiffs'' witnesses stated that the grantee entered into possession after the grant and remained in possession thereafter up to the time of the Record of Rights, and if this is so then the plaintiffs should not be deprived of their rights merely because the learned Subordinate Judge failed to set out in detail the evidence and the grounds upon which he found dispossession. In these circumstances it seems to me that the proper way to deal with this case, if the learned Judge considered that the findings were unsatisfactory, was not to enter judgment for the defendants but to send the case back for a proper finding upon the question on which it was thought the learned Subordinate Judge''s judgment was unsatisfactory. In the particular circumstances of the case, however, it seems to me that it would serve no useful purpose to send this case back to the Subordinate Judge for further consideration because we have referred to the plaintiffs'' evidence ourselves and it does appear from that evidence and especially from the evidence of the first witness who was one of the plaintiffs, that there was evidence upon which the learned Judge''s findings can be justified The first witness Kirat Singh, who is the first plaintiff on the record, was called arid he stated that his father entered into possession of the land granted by the mukarrari after the grant and remained in possession right up to the time of the survey. There is further evidence on the record on behalf of the plaintiffs to the effect that the plaintiffs'' father did in fact at one time exercise acts of possession by cutting some of the bamboos on this particular plot. In these circumstances, having regard to the fact that the learned Subordinate Judge placed no reliance whatever on the evidence of the defendants, it follows that there was only the evidence of the plaintiffs upon which he could rely and although he does not refer in detail to that evidence, he does find as a fact that the plaintiffs were dispossessed at about, or just after, the time of the survey and that is in accordance with the evidence given on behalf of the plaintiffs. In these circumstances it seems to me that there was evidence on the record to justify the findings and once having arrived at that conclusion, I do not think that the finding of fact can be set aside in second appeal. For these reasons, in our opinion, the decision of Mr. Justice Kulwant Sahay must be set aside and the decision of the Subordinate Judge restored. The plaintiffs are entitled to their costs of the second appeal and of the appeal to this Bench.

Foster, J.

I agree.