Palakdhari Mahton and Another vs Purandra Prasad

Manohar Lall, J.—This is an appeal by the defendants against an appellate decree of the Subordinate Judge, Second Court of Monghyr, decreeing the suit of the plain, tiff for recovery of possession of certain lands on establishment of title thereto. It is unnecessary to state the facts at length. The subject matter of dispute is Plot No. 219, a pokhar, recorded as ghair mazruam in the survey. After the survey there was a batwara. There was some dispute in the Courts below as to whether this plot can be said to have fallen into the patti of the plaintiff, the defendants relying upon the fact that this batwara plot was shown in the map but not shown in the batwara pattidari.

The lower Appellate Court has come to a clear finding that this Plot No. 219 belongs to the plaintiff and has also come to a finding that the plaintiff after the batwara from the Collector obtained delivery of possession of his batwara patti through the Collectorate on 23rd February 1921. Therefore the title and possession of the plaintiff were established on that date. The present suit having been filed on 8th February 1933, this action was prima facie within time unless the defendants could show that they had acquired title to this plot and were in possession under such title.

This the defendants purported to do by alleging settlement from one Jamuna Prasad, an ex-co-proprietor of the original tauzi, on payment of salami; and their further case is that after the settlement the defendants come into possession of this plot and began to cultivate it and ever since they have been cultivating it. They relied upon their adverse possession in the alternative.

The two Courts of fact have concurrently disbelieved the story of settlement, but notwithstanding that the trial Court found that the defendants "have been in open, continuous and adverse possession of the land for more than 12 years". The Appellate Court however has given its finding in these terms:

Manifestly be has taken advantage of the contiguity of this plot to convert the disputed pokhar to his own use by growing crops thereon. The defendants are therefore clearly trespassers and as such are liable to be evicted. No doubt the defendants have examined their witnesses but in my judgment their statements at best go to show only that the defendants have been in possession of the suit land so far as the culturable portion is concerned for some years but these hardly go to establish that the defendants have been possessing these, lands for over the statutory period of limitation.

Ordinarily this is a finding of fact which is binding on this Court in second appeal, but I was not satisfied with this finding; because the learned Judge in appeal has not categorically made reference to the settlements of the witnesses of the defendants whom be purported to disbelieve, nor did he make any reference to the witnesses of the plaintiff on the question of possession.

I therefore looked into the evidence in the case myself and I am I satisfied that it is not open to me to interfere with the finding of fact however unsatisfactory it may at first sight appear to be, but under the circumstances I disallow the claim for mesne profits.

The result is that the appeal is dismissed subject to this, that the claim for mesne profits is disallowed. There will be no order for costs in this Court.