Kueshwar Jha and Another vs Uma Kant Jha and Others

Meredith, J.—This is a second appeal by the defendants against a decision of the learned District Judge of Darbhanga reversing a decision of the Munsif of Madhubani and decreeing the plaintiff''s suit without costs.

The suit was brought under the provisions of Order 1, Rule 8, Civil P.C., by certain persons as representing the villagers of Bhowanipur. It related to 1 katha 7 dhnrs of land comprising plot No. 3603 in that village and recorded in the record of rights as parti Kadim gair mazrua am.

The plaintiffs sued on the allegation that the plot in question was used by the villagers as a meeting place and play ground, and for making "structure of houses" (whatever that may mean). Three or four years before the suit the defendants first party dispossessed the villagers by constructing houses upon the land. Prior to that the land had been parti in the use of the villagers for the purposes mentioned and the defendants first party had had nothing to do with it. The defendant had taken possession by virtue of an alleged settlement from the landlord, who was impleaded as defendant second party, but that settlement of gair mazrua am land by the landlord was null and void '' and gave the defendants first party no right or title. Hence the plaintiffs prayed for a declaration of the rights of the villagers and for the ejectment of the defendants by removal of the structures on the land.

The case of the defendants first party was that they had taken settlement from the landlord not three or four years before the suit but as far back as the year 1914. Indeed prior to that they had been in possession of the land, which adjoined their ancestral houses, as their bari and had fenced it. In 1914 the landlord recognised their possession by giving them formal settlement. The settlement was of 17 dhurs only. But the defendants actually took possession of 9 dhurs or so extra and so came to be in possession of the whole plot. The plaintiff''s suit was consequently barred by 12 years'' limitation.

The landlord defendant second party supported the case of the defendants first party. He stated that the defendants first party had taken settlement of 17 dhurs out of the disputed plot in the year 1320 Fasli and constructed their houses thereon. At the time of the settlement, however they trespassed over an additional 9 dhurs. This was detected at a trespass measurement in the year 1342 made on behalf of the Raj and the possession was then regularised by giving a further settlement of the 9 dhurs.

It should be mentioned that according to the defendants first party they started the construction of houses upon the disputed land the year after the original settlement. One house was built at first but within the succeeding few years the number of houses was brought up to four.

The learned Munsif accepted the defendants'' case in its entirety and held that the defendants first party had been in actual possession of the entire suit land since the year 1915; that possession amounted to ouster of the plaintiffs. The suit was therefore governed by 12 years'' limitation and as such it was barred by time. He accordingly dismissed the suit.

The learned District Judge accepted the defence case with regard to 17 dhurs; that it had been settled by the Raj Darbhanga with the father of defendant 1 in the year 1915 and that the defendants first party had been in possession ever since. He remarked however not quite justly, that the learned Munsif had not distinguished between the settlement of 1915 and the further trespass on the 9 dhurs in respect of which a settlement was made only in the year 1935. He observed that there was no reliable evidence to show when the latter trespass took place; but he strongly doubted whether it '' took place, as alleged by the defendants, when the original settlement was made, because he thought it unlikely that the trespass would have gone undetected by the Raj for 20 years until settlement was made in 1935. He was inclined to think therefore that even upon the Munsif''s view with regard to the article of the Limitation Act applicable, the suit would not be time-barred so far as the 9 dhurs were concerned.

He however was of opinion that no question of limitation arose at all because the construction of the houses by the defendants first party amounted to a continuing wrong giving rise continuously to fresh causes of action u/s 23, Limitation Act. In this view of the case he decreed the suit for the entire disputed land. He allowed no costs to the plaintiffs however, because in his opinion the suit was not a bona fide one. Though the settlement 1 had been made as far back as 1915 the villagers had not found it necessary to take any action about it for 23 years, and moreover he noticed that two of the plaintiffs had actually signed the proclamation made in the year 1914 for the settlement of this land by auction, issued by the Circle Manager.

This view of the learned Judge upon the question of limitation was quite wrong. The question of limitation in suits of this kind has been fully considered by this Court in Choudhury Bibhuti Narayan Singh and Others Vs. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur, . In that case it is laid down that there is nothing in Section 23, Limitation Act, 1908, upon which a distinction can be made between the case of encroachment upon private land and upon public land and if in the one case limitation may run, there is no reason why it should not also run in the case of a precisely similar act committed upon public land. Whether the wrong is continuing or not must depend upon the nature of the wrong and not upon the nature of the land over which it is committed. A distinction must further be made between the continuance of a legal injury and the continuance of its injurious effects; and there is no perpetual right of suit u/s 23, whether a wrong be continued or not, when the trespass itself gives rise to rights extinguishing any right of suit. When the wrong amounts to dispossession of the plaintiff, then, even although it may be a continuing wrong, the plaintiff cannot recover possession after 12 years, because u/s 28, Limitation Act, 1908, he himself has got no right left which he can enforce.

The real question in a case like this is not whether the wrong is continuing or not, but whether the wrong amounts to a complete ouster of the plaintiff, that is, to his dispossession. Where it is a case of dispossession and-the suit is for recovery of possession by ejectment of the defendant, then Article 142, Limitation Act, provides a period of 12 years limitation from the date of the plaintiff''s ouster. Beading with that article Section 28, Limitation Act, it is clear that the plaintiff can have no right of suit after the expiry of 12 years from his dispossession; for Section 28 provides that at the determination of the period limited in the Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. It is clear that once it must be held that the plaintiff''s right is extinguished, it is quite irrelevant whether the wrong is technically continuing or not, so far as the question of recovery of possession of that property is concerned. The plaintiff cannot recover it because he has no longer any right in that property.

The view taken by the learned Munsif therefore was quite right and the suit, upon his findings of fact, was clearly barred by limitation. There remains, however, a difficulty with regard to the 9 dhurs of land, because here the learned District Judge has not endorsed the Munsif''s finding that the defendants had been in possession of that also since 1915. The learned District Judge, however, has himself come to no dear finding upon the point. I have already quoted what he has said. He seems to have been obsessed by the view that no question of limitation arose, and it seems that he did not therefore direct his mind to the determination of the question how long the plaintiffs had been ousted from the 9 dhurs. He merely states that he doubts whether it took place as far back as 1915. It seems that it was because, as I have said, he was obsessed with the idea that the question did not arise at all, that he came only to this perfunctory finding, which cannot be considered a definite finding based upon a consideration of the evidence and binding in second appeal.

u/s 103, Civil P.C., it is open to us to go into the evidence and to determine this question for ourselves, and we have considered it advisable to do so in order to save a remand upon this small point. We have looked into the evidence and, while it is not very satisfactory upon either side, I am of opinion that upon the whole it justifies the finding arrived at by the Munsif that the defendants first party had been in possession of the entire land from the beginning. It will be recalled that it was the defendants'' case that they had been in possession even before 1915; that before the houses were built this disputed land had been fenced by them and used as their bari. If this is correct, it would amount to ouster of the remaining villagers. The defendants examined four witnessep to prove their case upon that point and though there are discrepancies in the evidence, in my view, in the main, it is evidence of truth. The plaintiffs examined three witnesses to prove their version, but the evidence of these witnesses is quite worthless because they have all clearly spoken falsely upon the main point, that is, the possession of 17 dhurs. They have all been disbelieved as regards that by both the Courts. When these witnesses came forward with a wholly false tale that the defendants had nothing at all to do with any of the land until three or four years before the suit, their statements with regard to the 9 dhurs have no value at all. It is noticeable that none of them made any distinction between the 9 dhurs and the rest of the disputed plot.

It is quite obvious, as the learned District Judge has held, that this was not a bona fide suit. If there was any real interference with the rights of the villagers, they would have done something about it before the lapse of 23 years. The fact that two of the plaintiffs actually signed the proclamation for the settlement of these lands in 1914 is extremely significant upon the question of bona fides. This being the nature of the suit, there seems to me no real reason for disbelieving the defendants'' case that they have been in possession of the entire land all along. It is true that the four houses admittedly only covered 9 dhurs, but the rest of the land seems to have been fenced in and used as bari. It is admitted by the defendants'' witnesses that a fire took place some years before the suit in which both the ancestral house and the extensions upon the disputed plot were all burnt down, after which they were re-built. The witnesses disagree as to the date of the burning, some making it as much as 12 or 13 years before the suit, some four or five. But assuming that the houses were re-built as late as four or five years before the suit, this may explain how the plaintiffs came forward with the positive story that the houses were built three years before the suit. We are not told, however, what was the extent of the burning; whether it was so extensive that possession of the plot was completely abandoned for any period at all or whether any portions of the houses were built with the materials left. In the circumstances this incident, in my opinion, would not justify a finding that possession for any period had reverted to the rightful owner. In my view the findings of the learned Munsif were correct, as was also his view on the question of limitation. I would therefore allow this appeal, set aside the judgment of the learned District Judge and restore that of the Munsif. There will be no order as to costs in this Court.

Fazl Ali, J.

I am also of the opinion that this appeal should be allowed.