Ram Rambijaya Prasad Singh vs Krishna Madho Singh and Others

Wort, J.—These appeals relate to a claim to certain lands the particulars of which are given in the Schedule to the plaint in Second Appeal No. 1048 of 1933. The claim is in respect of tauzi No. 1504 and accretions thereto since the date upon which this touzi was settled. The settlement, as will appear from the statement of facts I propose to make, was made in 1862. I propose to state my reasons for my conclusions briefly, although the argument in the case lasted for a considerable time. There were only two points in the case: first, what was the subject-matter of the settlement of 1862, and, secondly, whether the plaintiffs in Second Appeal No. 1048 of 1933 had acquired a title to the property in suit by adverse possession.

The defendant''s title to the land dated from the year 1903 when this touzi No. 1504 was sold by Government for arrears of revenue and purchased by the Maharani of Dumraon. The plaintiffs or their predecessors-in-title were the defaulting proprietors. Some time prior to the year 1862 it was found, after survey, that mahal Sheopur Diar Gangbarar showed an excess of some thousands of bighas more than the proprietors were entitled to hold, and it was under those circumstances that the settlement was made. The question in this case and in a number of other cases that have arisen out of the same facts is whether the subject-matter of the settlement was the excess of 28774 bighas which was found to exist or was 569 bighas odd as was contended for. The matter was determined in a previous suit (to which I shall make reference) on the construction of a rubkari (Ex. 12) made at the time of the settlement.

By a decision of this Court in Appeal from O.D. No. 57 of Babu Tilakdhari Singh v. Maharaja Kesho Prasad A.F.O.D. No. 57 of 1916 Das J. as he then was and Foster J. came to the conclusion that the subject-matter of the settlement was 2877� bighas and not, as contended for by the defendants in the action, 569 bighas. I make reference to this matter at this stage of my observations as the alternative argument on behalf of one of the respondents is different from that, which was advanced in the Court below.

It is perfectly clear from the plaint, the written statement, the issues framed and the judgments of both the Courts that the question upon which the parties made their case to depend was whether the settlement was of 2877� bighas or the lesser area to which I have referred, and which according to the plaintiff had never been defined or demarcated. It is quite clear from the plaint that it was contended that the lesser area was the subject-matter of the settlement by Government in 1862, that that settlement was in a sense a mere paper transaction; that the 569 bighas, the subject-matter of the settlement, were to be found somewhere in the excess area of 2877� bighas; that the balance between the 569 bighas and the 2877� bighas formed at the time of the settlement, and afterwards a part of the plaintiff''s estate; that the plaintiff remained continuously, in possession; that the sale for arrears of revenue (to use the words of the Judge) was misconceived; that the Maharani purchased nothing and did not, as a result of that purchase, obtain possession. It is not difficult to see the reason why this case and this case only was advanced by the plaintiff. I am not forgetting the fact that since the date of the settlement there were accretions to touzi No. 1504 and the alternative argument was that the defendants were in possession of something more than what they were entitled to even if their title to tauzi No. 1504 were established.

It seems to me that the whole case was made to depend and did depend upon the question whether 2877 bighas was the subject-matter of the settlement or not. I repeat what I said a moment ago that it is not difficult to understand the reason why the plaintiffs advanced this case, the reason being that if they could only show that the subject-matter of the settlement was for the lesser area, it not being denied (in fact there being no dispute) that they always remained in possession of their estate Gangbarar, it would necessarily follow (if the area 569 bighas was undefined and undemarcated) that they remained in un-interrupted possession of the whole subject-matter of the settlement of 1862.

The two points to be decided are, first, whether the subject-matter of the settlement was, as is contended for by the plaintiffs in Second Appeal No. 1048 of 1933 or as was decided by this Court in 1919 in the case to which I have made reference, and, secondly, whether, even if title passed by the sale and purchase of 1903, the plaintiffs remained in possession by having acquired title by adverse possession, or, to put it more accurately, by their title having revived by their remaining in adverse possession.

The next fact to be noticed after the settlement of 1862 was the sale of 1903 for arrears of revenue. According to the Judge in the Court below possession was not acquired by the purchaser, but in 1911, the Maharani having died in 1907, the new Maharaja brought the action out of which Appeal from Original Decree No. 57 of Babu Tilakdhari Singh v. Maharaja Kesho Prasad A.F.O.D. No. 57 of 1916 arose. He claimed possession of the tauzi which was purchased in 1903 and succeeded in the trial Court, succeeded also in this Court, and an appeal before the Judicial Committee of the Privy Council was dismissed. The same argument which is advanced in this case was advanced in that case, and Das J. during the course of his judgment, more particularly on the construction of Rubkari of 1862, came to this conclusion:

The important passage in the document runs as follows: ''It is clear that by the measurements made by the Tahsildar and the Kanungo 2877 bighas 10 kathas was found in excess to the 13977 15 kathas of the survey area, out of which 1923 bighas occupied by the river Ganges which having devastated the cultivated etc. area out of the survey area is now flowing and 384 bighas 8 kathas is uncultivable. Bhagar and Nala lying below the Karara on the south, and 569 bighas 12 kathas is found culturable and fit for assessment of rent.'' It is in my opinion impossible to misunderstand the meaning of the Deputy Collector. 569 bighas 12 kathas was found fit for assessment of rent. This does not mean that 569 bighas 12 kathas were to be formed into a separate estate. This argument in my opinion is inadmissible on the admitted history of the accreted lands of Sheopur Diar.

The learned Judge then goes on to refer to the fact that it had been the history of that particular estate that an area less than the whole in every new settlement had been assessed to revenue. I refer to that passage because the learned Judge in this case comes to a conclusion different from that arrived at by Das J. in that case on the ground that there has been another and more accurate translation of the Rubkari, and, secondly, that there are other documents which throw light on the meaning of the Eubkari. It is to be noted in this connexion that subsequent to the settlement of 1862 the new tauzi was transferred from Ballia, a district in the United Provinces, to Shahabad Collectorate, and it is on the entries in the Shahabad Collectorate that the learned Judge in this case depends for his view that the estate known as tauzi No. 1504 consists of 569 bighas and not 2877� bighas. In my judgment the decision of the learned Judge in the Court below on the footing that the translation of the Rubkari was more accurate is quite unjustified. According to Das J. the translation of the Rubkari, so far as this particular matter was concerned, was this: that 569 bighas "was found culturable and fit for assessment." The passage, as translated by the trial Judge, was "that 569 bighas 12 kathas which was cultivated was found suitable for settlement and assessment of revenue.

It seems to me to be perfectly clear that the learned Judge of this Court in construing that document was not in any way influenced by the use of the word translated as ''rent'' in contradistinction to ''revenue'', emphasis was being placed, as is placed in this case by both the Courts below, on the word ''settlement''. It is perfectly clear that what the Government was considering at that time was not whether the land was fit to be settled, but whether the land, being fit for settlement with tenants, was assessable to revenue. And Das J. came, and in my judgment rightly came, to the conclusion that what was being settled was 2877 bighas and that 1900 odd bighas were allowed to remain free of revenue by reason of the fact that the shifting of the Ganges northward had inundated that quantity of land of the plaintiffs or their predecessors-in-title and that they therefore had lost, from their revenue-paying estate, that area. The same conclusion was arrived at by two Judges of this Court in Mt. Dharichhna Kuari and Others Vs. Ramyad Kuari and Others, where Rowland J., who delivered the judgment of the Court, observed:

It is true a demarcation did not follow. The fact however that one sum of revenue was assessed on Gangbarar and a different sum separately assessed on Naubarar, is in itself an indication of the intention of the revenue authorities to keep the latter as separate property separately liable for its own arrears. Had it been otherwise a lump sum of revenue would have been fixed for the entire combined estate, and in case of default the entire estate would have been liable to sale. In my opinion the new estate comprised the area of 2877� bighas bounded on the north by plot No. 920 and this definite block of land was the security charged with the payment of Rs. 1104.

It seems to me that the only point which could possibly arise in this Court is whether the decision of the learned Judge in the Court below, which is on appeal before us, is a decision on a question of fact or a question of law. In my judgment so far as the question of the construction of the Rubkari is concerned, it is a question of law, and, if we come to the conclusion at which this Court on a previous occasion has arrived (which in my judgment is the proper construction in the case), it seems to me irrelevant to consider the entries in the Collectorate books, as the Judge in the Court below did, for the purpose of construing that document which does not appear to me to suffer from anything in the form of a latent ambiguity. Now, the other conclusion at which the learned Judge in the Court below has arrived, namely that it was a settlement of 569 bighas undefined and undemarcated, is a finding which in my judgment cannot stand, and I cannot express my reasons for coming to that conclusion better than what Das J. did in the case to which I have referred. The learned Judge, referring to this argument which was then advanced by Mr. Sushil Madhab Mullick, made this observation:

One inevitable result of the acceptance of the argument advanced by Mr. Mullick has been entirely overlooked by him. The regulations provide that in the case of a settlement by the Collector, the lands are to be deemed sufficient security for the payment of the revenue.

I might observe here that Rowland J., in the judgment to which I have referred, makes the same or a similar observation. Das J. then goes on:

Mr. Mullick''s argument is that the Collector settled 569 bighas 12 kathas of unascertained and unascertainable lands. The result of such a settlement would be that such lands could never be sold for non-payment of Government revenue, because the purchaser would never get possession of such lands. In other words in this case, the land was not a security sufficient or otherwise for non-payment of Government revenue.

Then the learned Judge made this observation which seems to me to conclude the matter: such an assumption is clearly

against the statute of the land, omnia praesumuw tur rite esse acta, and if an official act is proved to have been done, it must be presumed to have been regularly done.

The conclusion of the learned Judge in the Court below therefore cannot stand, although, as I have already indicated, it was not so much the evidence upon which the learned Judge in the Court below relied for coming to his conclusion that the land was not demarcated as the lack of any evidence on the point. That there could be a presumption in the circumstances that there was no demarcation in my opinion is untenable.

Having come to a conclusion on that point, the only other question to be determined is whether the plaintiffs'' title which disappeared by the sale of 1903 revived by adverse possession, as the Judge in the Court below has held. Now the conclusion of the Judge was that the Maharani never got possession in 1903. Had all the present parties been parties to the proceedings which arose out of the action of 1911 there would have been an end of this case in favour of the defendants, but they were not parties is admitted. As regards the sale of 1903 the matter may be disposed of on the same reasoning as adopted by their Lordships of the Judicial Committee of the Privy Council in the decision reported in AIR 1937 69 (Privy Council) , where reference was made to the conclusion of the Judge of this Court which was to the effect that the Raj had not taken possession after the revenue sale and the presumption was that the possession continued as before and that presumption is supported by the fact that an action was brought in 1911. Their Lord, ships say that:

Their Lordships cannot agree that the approach, in the present question is accurate. If it be once shown that the lands in dispute passed by the revenue sale of 1903, there can in law be no presumption that, contrary to the purchaser''s rights, the old proprietors remained in receipt of rent from the agricultural tenants.

Even if there is anything in the argument which was advanced that the present plaintiffs were not bound by the sale of 1903, it seems to me that the question of adverse possession can be determined on other grounds. The Judge in the Court below has held that adverse possession ran from the year 1903; that by 1916, when delivery of possession was given, the plaintiffs'' title revived. In my judgment that is an erroneous conclusion. If adverse possession was running from the year 1903 and if the learned Judge in the Court below has held that the plaintiffs were in adverse possession from that date then that conclusion would ordinarily be a conclusion of fact and would be binding on this Court in second appeal. But the real question in dispute is whether as a matter of law limitation did run from 1903. The learned Judge decides that it did, because it was a purchase by the Maharani and the reversioners who brought their suit in 1911 got possession somewhere in 1916. They were already barred by reason of adverse title which would revive. That conclusion is on the footing that this property was not a part of the Raj estate but was the stridhan of the Maharani. Several decisions have been relied upon for that contention. One is the case in Babu Sheo Lochun Singh v. Babu Saheb Singh (1887) 14 Cal. 387. Before referring to that case I would refer to the decision in Sowdaminee Dassee v. Administrator-General of Bengel (1893) 20 Cal. 433 which was relied upon. Their Lordships observed at p. 23 of the report:

The appellant''s counsel contended that the savings of a Hindu widow must be presumed to have been made for the benefit of her husband''s estate. Without examining the precise result of the decisions, it is sufficient to say that in this case there is no room for any such presumption, for the corpus of the estate never came to the widow, but was taken by Sham Churn Mullick under the will.

It does not seem in my judgment to be a clear authority on this point, but the case to which I referred earlier does in my judgment settle the principle. There their Lordships observed:

Where a widow comes into possession of the properties of the husband, and receives the income, and does not spend it, but invests it on the purchase of other property, their Lordships think that, prima facie, it is the intention of the widow to keep the estate of the husband as an entire estate, and that the property purchased would, ; prima facie, be intended to be accretions to that lost ate.

Here I do not think there is any doubt that the property was purchased from the savings of the income of the widow. There is no evidence to the contrary, nor indeed is it suggested that there was any income from her stridhan property. In the absence of evidence it seems to me that the rule, which their Lordships laid down must be applied in this case and therefore prima facie this was a part of the Raj estate. In those circumstances the widow having died in 1907 limitation would run from that date. Quite clearly therefore by 1916 there was not sufficient time for the revival of the plaintiffs'' title. It was contended however, from 1907 till the date of the commencement of this suit there was more than 12 years and that therefore their title had revived during that period. In my judgment that is a contention which cannot be supported either on the facts or the law. It was not the plaintiffs'' case in Second Appeal No. 1048 of 1933 nor was evidence directed to that question. Para. 13 of the plaint says:

The cause of action of this suit arose on 24th April 1916, the day of delivery of possession as well as the commencement of the survey settlement operations at Buxar.

Further reference is to be made in this connexion to para. 9 of the plaint. Rowland J. has noted in the judgment to which I have made reference that an interruption in the occupation or possession of the person claiming title by adverse possession is sufficient to break the period. I would come to the conclusion that it is not open to the plaintiff to contend that a title by adverse possession was obtained between the year 1916 and the date of this suit. As I stated at the commencement of my judgment, the parties made their case to stand or fall on two points, viz. whether it was a settlement of 2877 bighas in 1862 and secondly whether title by adverse possession was acquired before the year 1916 and on those points alone, and on those points the plaintiff fails.

In my judgment the appeals succeed and must be allowed with costs throughout. This judgment will govern all the appeals except Second Appeals Nos. 12 and 13 which will be governed by the decision in Second Appeal No. 1056 of 1933 which is not before us.

Agarwala J.

I agree.