Mt. Batisa Kuer vs Raja Ram Pandey and Others

Sen, J.—This appeal arises out of a suit by the plaintiff-appellant for a declaration that a deed of zerpeshgi, dated the 20th December 1907, executed by Mt. Inderbaso in favour of Defendant 1, was fraudulent and collusive and without legal necessity; that the said mortgagor had no right or title to execute the zerpeshgi deed and that, therefore, it was not operative on plaintiff who had inherited the land in dispute from her father Sadhu Dubey.

The case of the plaintiff was that one Sheo Dubey had two sons, Nakched and Chulhai; that Nakched had a son Dukhi Dubey, and Chulhai had a son Sadhu Dubey; that Dukhi and Sadhu were joint; that Dukhi died and Sadhu came into the family property by survivorship; that after Sadhu''s death his widow Mt. Jharo succeeded her, and that after Mt. Jharo the plaintiff inherited the property in suit from her father. The plaintiff alleged that Inderbaso Kuer, the widow of Dukhi, illegally and fraudulently executed a deed of zerpeshgi, dated the 20th December 1907, in favour of her brother, Defendant 1, who in turn assigned the mortgage in favour of Defendant 2. The case for the defence was that the plaintiff was not the daughter of Sadhu and Jharo; that Dukhi and Sadhu were not joint when Dukhi died; that upon Dukhi''s death Inderbaso Kuer succeeded to his property and upon her death her daughter Sona Kuer succeeded. Defendant 1 alleged that he was the daughter''s son of Inderbaso, that is, the son of Sona Kuer and not the brother of Inderbaso Kuer, as alleged by the plaintiff.

The learned Munsif held that the plaintiff was the daughter of Sadhu Dubey; that the zerpeshgi deed was fraudulent and collusive; that Duki died whilst living joint with Sadhu and that Defendant 1 is the brother of Inderbaso; and he decreed the suit. On appeal, the learned Subordinate Judge affirmed the finding that the plaintiff was the daughter of Sadhu; but he held that, even assuming that Inderbaso, the mortgagor of Defendant 1, had no title to the land in suit, Defendant 1, having got possession of the land in 1907 on the basis of his zerpeshgi, and having continued in possession for over 12 years his title was perfected by adverse possession. He, therefore, allowed the appeal and dismissed the suit.

It is contended before us: first, that the question of adverse possession was not in issue and that the Court of appeal was not competent to raise it or pass his decision on it; secondly, that the question whether Dukhi or Sadhu were joint or separate was not gone into by the Court of appeal; that he should have gone into the question fully.

There is no doubt that title by adverse possession does not appear to have been raised in the pleadings, but the principle has often been laid down that a party may be allowed to succeed on a title by adverse possession pleaded for the first time in the Court of appeal if such a case arises on facts stated in the pleadings and the party is not taken by surprise. The learned Subordinate Judge bases his decision on the following facts. He finds that as early as 1898 in the cadastral survey Inderbaso Kuer''s name is recorded in the survey Khatian, and he observes that this entry must be regarded as a presumptive piece of evidence of possession of Mt. Inderbaso. He finds that in 1901 there was a zerpeshgi in favour of Defendant l granted by Inderbaso Kuar; he finds that in 1907 the zerpeshgi in suit was executed; that the dues of the previous bond ware satisfied out of the consideration of the disputed zerpeshgi in favour of Defendant 1. These two old registered bonds, he observes, executed so long ago as 1901 and 1907, show that Mt. Inderbaso exercised acts of possession over the disputed land. He also records it as an admitted fact that Sadhu, the father of the plaintiff-appellant, "died 7 or 8 years ago," and that the defendant''s possession over the land in suit commenced during Sadhu''s lifetime, and further that admittedly he is still in possession. He also states that the witnesses of the plaintiff had to admit that plaintiff never got possession of the land in suit; that in fact not a single witness examined by the plaintiff spoke a word about the possession of the plaintiff or her predecessor Sadhu over the land in suit. It is also found that at the revisional survey of 1919, the name of defendant 1 was entered as being in possession as zerpeshgidar of Inderbaso. Now most of the material facts above mentioned were stated in the pleadings and evidence was gone into in detail on all the points. On the principle laid down in the case of Lilabati Misrain v. Bishun Choubey (1) the learned Subordinate Judge rightly came to the conclusion that limitation, having once commenced to run in the lifetime of a full owner, cannot be taken to be suspended if he dies and is succeeded by a limited owner. Upon the facts found and upon the facts appearing in the pleadings, I am inclined to think that the finding as to adverse possession is well sustainable. Ordinarily the principle no doubt holds good that adverse possession should be distinctly raised in the pleadings and should also form the subject-matter of an issue; but where the fact is so clear and unmistakable that the plaintiff has never been in possession of the land claimed for nearly 22 years, and where, on the other hand, possession is exercised adversely to him as found in the present case, I see no reason for interference.

The appeal is dismissed with costs.

Adami, J.

I agree.