Shiv Saran Rai vs Sukhdeo Rai and Others

Agarwala, J.—The dispute in this appeal relates to the properties of one Nathuni Rai, a descendant of the eldest branch of the family of Bhup Rai. The plaintiff and defendants, except defendants third party, are descendants of other branches of the family of Bhup Rai. Nathuni Rai had property in two villages, Madhubani and Jagarnath Sarai. In the latter village his property consisted of two holdings, khata No. 178 and khata No. 185. Defendants third party were the landlords of the former holding. In the plaint in the present suit it is alleged that one Paras Nath was the landlord of khata No. 185. After the death of Nathuni Rai, the present defendants 1 and 6, belonging, respectively to the third and fifth branches of Bhup Rai''s family, and Aman Rai, father of defendant 7 of the second branch of the same family, instituted a suit in 1922 against the father and uncles of the present plaintiff, who belonged to the fourth branch of Bhup Rai''s family, alleging that the second, third, fourth and fifth branches of the family had each inherited one-fourth of Nathuni Rai''s property. That suit was decided in favour of the father and uncles of the present plaintiff, it being held that they were the nearest surviving heirs of Nathuni at the time of his death. Despite this decision the dispute between the parties continued with the result that proceedings u/s 144, Criminal P.C., were initiated and resulted in an order against the contesting defendants in this suit prohibiting them from interfering with the present plaintiff''s possession of the two holdings in Jagarnath Sarai. This was in March 1926. At the end of the same year the present plaintiff again complained that his possession was being interfered with and he asked for proceedings u/s 107 to be taken against the persons complained against. His request was refused.

Consequently, on 27th August 1927, he filed the plaint in the present suit alleging: that as a result of the refusal to initiate proceedings u/s 107 he had been dispossessed on 5th Pus, 1334 Fasli, corresponding to 24th December 1926. Defendants 1 to 4 in the suit were the descendants of the third branch of Bhup Rai''s family; defendant 5 was a descendant of the fourth branch; defendant 6, a descendant of the fifth branch, and defendants 7 to 9 of the second branch. The landlords of khata No. 178 were also impleaded as defendants third party. Defendant 5 filed a written statement admitting the plaintiff''s claim. Defendants 6 to 9 did not enter appearance. The third party defendants, the landlords, filed a written statement objecting that they'' had been unnecessarily impleaded in this suit and denying that they had any dispute with the plaintiff. The plaintiff''s claim was contested by defendants 1 to 4 alone. They alleged that Nathuni Rai was a congenital idiot and, therefore, that'' he had not succeeded to any property, but that on the death of his father Pirthi Pal the latter''s property had been divided by family arrangement between the second, third, fourth and fifth of Bhup Rai''s family. This was a repetition of the claim in the former suit, and it was again negatived. The suit was decreed and an appeal by the contesting defendants failed. Thereafter defendant 7, against whom the suit had been decreed ex parte, applied for a re-hearing. His application succeeded, with the result that the suit has been re-tried as between plaintiff and defendant 7.

In his written statement defendant 7 did not take the same line of defence as had been taken by the other contesting'' defendants. He alleged, on the other hand, that on the death of Nathuni Rai the latter''s properties were inherited by one Sheotahal of the second branch of Bhup Rai''s family who was alleged to be the nearest agnate of Nathuni at the time of the latter''s death. He also alleged that plaintiff''s father had pre-deceased Nathuni and that Sheotahal, after succeeding to Nathuni''s properties, had made an oral gift of them to himself. Defendant 7 claimed to have been in adverse possession of the disputed properties for more than 12 years and also pleaded that the plaintiff''s suit was barred by limitation. The plaintiff filed a genealogy of the family with his plaint in which the sons of Bhup Rai were shown as follows: Dihal, the ancestor of Nathuni Rai, Sarab, the ancestor of Sheotahal and defendants 7 to 9, Udwant, the ancestor of defendants 1 to 4, Mana, the ancestor of defendant 5 and the plaintiff, Sadan Rai, the ancestor of defendant 6, and Ramji Rai who was stated to be the adoptive father of Mahipat Rai, the father of Sheotahal. Defendant 7 denied that Dihal and Sarab were sons of Bhup Rai or that Ramji Rai had adopted Mahipat.

He alleged that Dihal and Sarab were the sons of Prayag Rai, who was said to be a son of Bhup Rai, and that the plaintiff''s father and uncles had pre-deceased Nathuni Rai. If these allegations of the defendants were correct then Sheotahal was the nearest male agnate of Nathuni on the latter''s death. Accordingly, the questions whether Dihal and Sarab were the sons of Bhup Rai, whether Sheotahal survived Nathuni, whether the plaintiff''s father and uncles pre-deceased Nathuni and whether Sheotahal''s father was adopted by Ramji Rai were material issues in the case. A further material question was whether the sons of Mana were Ranjit, Mitrajit and Sampat, the grandfather of the plaintiff, as alleged by the latter, or whether third son of Mana was Indrajit as alleged by defendant 7, according to whom Sampat was the son of Indrajit.

In view of the decision of the first suit, that is to say the suit of 1922, to which the father of defendant 7 was a party, and in which it had been held that the plaintiff''s father and uncles were the nearest male agnates of Nathuni Rai at the time of his death, defendant 7 would prima facie have no title to the properties of Nathuni Rai unless the latter predeceased Sheotahal leaving him as the nearest agnate and Sheotahal made a gift of the properties to him. The first Court, after an elaborate survey of the evidence, held that the defendants'' evidence was entirely false, that Sheotahal pre-deceased Nathuni, that the statement of Sheotahal''s widow that Sheotahal had succeeded to the properties and gifted them to Nathuni Rai was unreliable, that plaintiff''s father and uncles were the nearest male agnates of Nathuni at the time of the latter''s death and that plaintiff was in possession of the disputed lands until 1334 Fasli. The suit was accordingly decreed. In appeal by defendant 7 it was held that the genealogy annexed to the plaint was correct, that Sheotahal survived Nathuni and gifted the disputed property to defendant 7, that plaintiff''s father and uncles did not survive Nathuni and that in any case the plaintiff''s suit was barred by limitation. The last question, which is the only issue adequately discussed in the judgment of the appellate Court, was contested on the basis of the suit being governed by Article 3, Son. 3, Ben. Ten. Act. The appellate Court held that plaintiff had failed to prove that he had been in possession of the disputed land within two years of the suit. In second appeal by the plaintiff it is contended that Article 3, Schedule 3, Ben. Ten. Act, does not apply to the case and that the suit is governed by the 12 years'' period of limitation prescribed by the general law.

We have been referred to a large number of oases of this Court and of the Calcutta High Court as to the scope of Article 3, Schedule 3, Ben. Ten. Act. There is a conflict of decisions as to whether the Article applies when the plaintiff has been dispossessed by the landlord, not qua landlord but in some other capacity. In Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, it was held that the Article is not confined to cases of dispossession by the landlord as such. In Gajadhar Rai v. Ram Charan Gope AIR 1930 Pat 256, on the other hand, it was held that dispossession by the landlord as auction-purchaser of the holding does not attract the provisions of the Article. In Rakhit v. Puddo Bauri 9 CWN 54 it was held that the Article does not apply where the dispossession was not effected by the landlord even though it is alleged that the landlord has set up the person who actually dispossessed the tenant. The decision in Ramdhari Rai v. Gorakh Rai AIR 1931 Pat 236 was that where the landlord has settled the land with a person who has already dispossessed the tenant, Article 3 does not apply, but on the other hand, dispossession of a tenant by a person armed with a settlement from the landlord does attract the operation of the Article: 158 IC 21 : Har Dayal Bhagat v. Nathuni Bhagwat AIR 1935 Pat 372. The Article does apply of course where the tenant is actually dispossessed by the landlord or by his servants Bheka v. Nakchhed (1897) 24 Cal 40 or by a person set up by the landlord: Rakhit v. Puddo Bauri 9 CWN 54. But where the landlord had no hand in the dispossession it has been held that the Article does not apply: Hridayanath Ray Vs. Prabodhchandra Khan, , Gobinda Chandra Gope v. Akhil Chandra Das (1921) 64 IC 858. In the present case it is contended by defendant 7 that the plaintiff alleged that the defendants including defendants third party, the landlords of khata No. 178, had conspired to dispossess him and it was therefore argued that Article 3 applied. In the first place, it is to be noticed that this contention cannot apply to khata No. 185 which, in para. 4 of the plaint, is said to be in the milkiat of Parasnath, although para. 6 is as follows:

With regard to the properties bearing khatas Nos. 178 and 185 in manza Sarai Jagarnath of which the defendants third party are the proprietors.

The lower appellate Court has come to no finding whether khata No. 185 is in the milkiat of Parasnath or in the milkiat of defendants third party. Further despite the general allegations of conspiracy the plaintiff''s substantial grievance was that he had been dispossessed by persons who claimed the properties of Nathuni Rai. He led no evidence to prove that the landlords were in any way responsible for the dispossession. The allegation of a conspiracy was apparently based on the fact that the landlords had granted receipts to the other defendants. But the landlords themselves in their written statement disclaimed any dispute with the plaintiff and said they had merely granted receipts to the persons who had had their names recorded in their sherista after the death of Prithi Lal and his son Nathuni Rai. The lower appellate Court''s finding that the defendants dispossessed the plaintiff more than two years prior to the suit and that the suit was therefore barred by Article 3 is based almost entirely on an allegation in the plaint that the defendants dispossessed him on 5th Pus 1334, which was within two years of the suit. If this allegation is to be construed as an admission that the landlords were responsible for the dispossession it cannot be divided into parts and must be read only as an admission that the dispossession was on 5th Pus 1334. It was not open to the Court of fact to dissect the admission and treat it as an admission that the plaintiff had been dispossessed by the landlords at some prior time. The appellate Court has omitted to consider the evidence referred to by the trial Court in coming to its conclusion on the question of the plaintiff''s possession.

In my opinion the plaintiff''s case substantially was that he had been dispossessed by the persons claiming the land and not that the landlords had instigated or assisted in the dispossession of the plaintiff. It follows therefore that the special period of limitation prescribed by Article 3, Schedule 3, Ben. Ten. Act, does not apply to the case. On all the other issues of fact the judgment of the lower appellate Court is entirely inadequate. The documentary and circumstantial evidence in the case with regard to these issues have been completely neglected and their bearing on the oral evidence not discussed. I refrain however from expressing any opinion on this evidence. The decree of the lower appellate Court must therefore be set aside arid the case remanded to be disposed of according to law.

It was contended on behalf of the respondent that even if the alleged oral gift of Sheotahal to defendant 7 be not established the latter was entitled to succeed as to half of the disputed property in the event of it being held that Sheotahal survived Nathuni. To succeed in this contention however the respondent must rely on the title of his father and this was decided in favour of the plaintiff in the suit of 1922. The principle of the decision in AIR 1932 161 (Privy Council) , applies and precludes the respondent''s contention.

Lastly, it was argued that the plaintiff being admittedly out of possession at the date of suit is not entitled to succeed unless he establishes his title and that if Sheotahal survived Nathuni, his widow and not the plaintiff is entitled to the property. Answer to that is that if the defendants dispossessed the plaintiff with in the period of limitation prescribed for a suit for possession the latter is entitled to recover possession unless the defendants establish a better title: Ranjit Singh v. Jhori Singh AIR 1929 Pat 601

Madan, J.

I agree.