B.L. Hansaria, J.
1. The origin of the dispute can be traced to the year of India's first struggle for independence, which was in 1857. The case of the plaintiff is that in that fateful year his great grandfather Rai Bahadur Prithiram Choudhury had granted the entire village of Chaibari as dowry to his eldest daughter, Dayamoyee, which was a part of Lakheraj estate of Mechpara. Husband of Dayamoyee was late Raghunath Singha, whose son Golok Singha died leaving behind the plaintiff as one of his heirs. It seems, Chaibari though called a village, had 2526 Bighas 18 Krantis 7 Dhurs of land. As such, anybody would like to fight for it till, if possible, eternity, as hunger for land seldom diei. A dispute did arise among the heirs of Rai Bahadur Prithiram and by a 'Solenama' (compromise deed) executed on 16-12-1875 it was agreed that the parties would honour gift of 10 Hals of land (200 Bighas) in favour of each of the married daughters of the father of the family. The plaintiff, however, asserts that the entire Chaibari village was gifted to late Dayamoyee.
2. When some area of Mechpara estate was being surveyed, late Golok Singha filed objection. The certain Lakheraj areas were also surveyed. In the meantime, Mechpara estate had come to be managed by the Court of Wards. To cut the long story short without doing injury to the case, it may be stated that the matter was even referred to the then Prime Minister of Assam in 1939 and by an order dated 14-6-1940, the petitioners in that objection case were asked to establish their rights in Civil Court and the Manager of the Court of Wards was asked to take steps for the eviction of the objectors if they continue to occupy khas lands of the Estate. The dispute, it seems, continued and came to head again after the Mechpara Estate had come to be vested in the State of Assam under the provision of the Assam State Acquisition of Zamindari Act (for short, the Act). The vesting, as per the plaint was on 14-4-1957. Survey operations were also going on simultaneously. On publication of the draft record of rights, an approach was made to the Assistant Revenue Officer against what was stated in the draft. This Officer passed an order to record 245 Bighas 3 Ks. 19 Ls. of land in the name of the objectors, vide his order dated 12-9-1960. Feeling aggrieved at that, the Revenue Officer was approached, who, after going through the matter in detail came to the conclusion that the objectors were entitled to 268 Bighas 6 Ks. 5 Dhurs of land covered by dag Nos. 8, 15 and 17, as per his order dated 14-2-1961, which is Exhibit 24.
3. After the Nechpara Estate had been acquired and had vested in the State, the case of the plaintiff is that the Circle Officer of Lakhipur tried to realise rents from tenants of the plaintiff and was trying to settle new tenants in Chaibari village. It is ultimately this which led the plaintiff to file this suit. In the plaint an averment had also been made that Lakheraj property of Mechpara Estate had not been acquired by the State Government and the same had not vested in the State along with the vesting of Mechpara. This averment was denied by the sole defendant -- the State of Assam.
4. On the pleadings of the parties, the following issues were framed:
'1. Whether the suit is maintainable?
2. Whether there is any cause of action for the suit?
3. Whether the suit is time-barred?
4. Whether the suit is bad for non-joinder and multifariousness of the causes of action?
5. Whether the plaintiffs are entitled to the suit land and correction of Khatian as prayed for?
5. The learned trial Court decreed the suit. On appeal, the learned District Judge has set aside the judgment and decree of the trial Court, but has decreed the plaintiff's suit for 268 Bighas 6 Ks, 5 Dhurs of land covered by dags Nos. 8, 15 and 17, which as already noted, the Revenue Officer had ordered by Ext. 24 to record in the name of the plaintiff.
6. Before the learned District Judge, three points were urged and his decision is confined to these:--
'1. Whether there is cause of action for (he suit and whether it is maintainable in its present form
2. Whether the suit is barred by limitation
3. Whether the plaintiff has acquired any valid right, title and interest over the land in suit and is entitled to the reliefs claimed in the suit?'
7. On the first point, it has been stated by the learned District Judge that as the plaintiff did not prefer any appeal against the order of the Revenue Officer passed on 14-2-1961 (Ext. 24) as provided in Section 109 of the Goalpara Tenancy Act, the suit was not maintainable in view of Section 114 of that Act. The same was also held to be barred by limitation, because even if Article 120 of the old Limitation Act was to apply, which had provided for a limitation of 6 years, the learned District Judge thought that this period had to be counted from 14-2-1961, and the same having expired when the suit was filed, which was in 1970, the suit was hit by the Limitation Act According to the learned District Judge, Article 142 of the old Act, or 64 of the new Act, has no application. On the plaintiff's right and title, it was held that as the suit property had vested in the State 'free from all encumbrances', under Section 4 of the Act, the plaintiff could not get a declaration of his title against the State, even if his case of adverse possession against the proprietors of Mechapara estate be tenable, which was not.
8. Mr. Sen urges before me that Section 114 of the Goalpara Tenancy Act cannot stand in the way of the plaintiff because the suit primarily is for declaration of title, whereas that lection bars Civil Court's jurisdiction in respect of any order directing the preparation of a record-of-rights, or in respect of framing, publication, signing or alteration of such a record. As to the limitation it is urged that even if the same is counted from 1940, in which year the Government had rejected the claim of the predecessor-in-interest of the plaintiff, the full period of 30 years was yet to expire by 1970 when the suit was filed.
9. On the point of maintainability of the suit it may only be stated that the relief I am going to grant ultimately does not come within the purview of Section 114 of the Goalpara Tenancy Act. As to the limitation, though Shri Sen contends that the period of 30 years had not expired by the time the suit was filed, the same does not appear to be correct because the Government Order was dated 14-6-1940, whereas the suit was filed on 25-8-1970. But then, I am of the view that in the present case it is Article 120 of the old Limitation Act, whose corresponding provision is Article 113 in the new Act, which is attracted. Though the period of limitation under the new Article is 3 years, Section 30 of this Act as amended by Act 10 of 1969, which has provided for 7 years period from the commencement of the Act in this regard, would save the limitation inasmuch as the averment is that the Circle Officer, Lakhipur was trying to realise rents since 1964 -- the suit having been filed in 1970. In this connection reference may be made to Rajkumar v. Jagwati, AIR 1980 All 225, which has reviewed the law dealing with the field of operation of old Article 120. This decision has referred to three Privy Council decisions which were approved by the Supreme Court in Rukhmabai v. Laxminarayan, ATR 1960 SC 335. The law on this subject is that the threat which results in accrual of the right to file a suit must be an unequivocal threat to infringe the right asserted by the plaintiff. Such infringement happened in this suit on and from 1964 when Circle Officer tried to realise rent from tenants settled by the plaintiff.
10. Despite this, the appellants who are the heirs of the plaintiff, cannot be declared to have acquired right, title and interest over the suit land. Let it be seen why The case of the plaintiff as regards his right was that the entire property known as Chaibari Lakheraj Estate had been gifted to Dayamoyee and as such heirs of Dayamoyee had become full owners of that property. In the alternative, it was contended that her heirs had become owners by adverse possession. The first aspect is a pure question of fact which did not appeal to any of the Courts below. This plea cannot be accepted as even in the 'solenama' of more than a century old (it is of 1875) the agreement was relating to gift of 10 hals of land and a homestead to each of the married daughters of Rai Bahadur Prithiram -- their number being 7. As such, ii cannot be held that the entire 2500 Bighas and odd land had been gifted to Dayamoyee. Shri Sen himself does not press for my acceptance this aspect of the matter.
11. The learned counsel is however keen that I should accept that the plaintiff had acquired title by adverse possession inasmuch as he, or his predecessor-in-interest, had been
exercising hostile rights openly by way of either felling trees, or collecting rents. In the plaint a number of incidents relating to felling of trees have been given and many witnesses were examined on this point. Large number of documents were also exhibited. Shri Sen refers to Kshitish Chandra v. Commissioner of Ranchi, AIR 1981 SC 707, which has held that to acquire title by adverse possession, it is enough that possession is open and without any attempt at concealment. It is not further necessary that possession must be so effective as to bring it to the specific knowledge of the owner,
12. Even if it is assumed in favour of the plaintiff that he was adversely possessing the suit land against the proprietor of the Mechpara Estate, the important question is whether the plaintiff could tag the same against the State. The learned District Judge has held that the right of adverse possession is an encumbrance. He has referred in this connection to Section 37 of the Revenue Sale Law (Act XI of 1895), which is not available to me. Shri Sen submits that this Act has no application and refers me to Section 2 (ja) of the Act, which had defined 'encumbrance' as below :
'(ja) 'encumbrance' in relation to an estate and rights of proprietors or their tenure-holders does not include rights of a raiyat or non-agricultural tenant.'
13. It is thus seen that really there is no definition as such of the word 'encumbrance' in the Act. What has instead been stated is that the word encumbrance would not include the rights of a raiyat or non-agricultural tenant. Now, it is not the case of the plaintiff that he is either a raiyat or non-agricultural tenant. He is really claiming the right of proprietor. Thus, Section 2 (ja) does not assist the appellants. We have, therefore, to see what is really meant by 'encumbrance' in its ordinary sense. Reference may be made to National Textile Corporation v. State of Maharashtra, AIR 1977 SC 1566. A question had come up for determination therein as to whether notifications under the Land Acquisition Act would fall within the category of 'other encumbrances' mentioned in Section 4(2) of the Sick Textile Undertakings (Nationalisation) Act, 1974. Under the provisions of that Act, the property of the sick undertaking was to vest in the Central Government free from 'any trust, obligation, mortgage, charge, lien and all other encumbrances affecting it'. Earlier to the vesting, notifications under the Land Acquisition Act relating to a part of the property had been issued. The point for determination was whether the notifications were part of the encumbrances. The Supreme Court examined the meaning of the expression 'encumbrance' in para-4 and referred to its definition in Wharton's Law Lexicon, where it is described as being a claim, lien or liability attached to property. It was then observed:
'This is the sense in which the term is ordinarily used. An encumbrance in this sense has to be a liability 'attached to property'. It must be a burden or liability that runs with the land .......'
As an adverse possession against predecessor-in-title could be tagged in law against subsequent title holder there is no doubt that this is a burden on the land which runs with it. It has therefore to be regarded as an encumbrance. But as under Section 4 of the Act land has to vest free from all encumbrances, there is no manner of doubt that the adverse possession claimable against the proprietor of Mechpara Estate would not be available against the State. Point No. 3 was thus rightly decided by the learned District Judge against the appellants.
14. This aspect may be looked into from another angle also. If the plaintiff's adverse possession would have ripened, as it must have if his case be correct, into full title over the suit land before acquisition of Mechpara Estate, there can be no denial that the title would have got extinguished on this property vesting in the State because of the provisions in the Act. Now, if a full right could get washed away, a lesser and inchoate right of probability of acquiring title through adverse possession could not have stood the onslaught of the Act. Looked from any angle, it cannot be accepted that as against the State the plaintiff could claim his right, title and interest over the suit land.
15. This is not all. Shri Sen urged before me that the Chaibari village had really not been acquired by the Government and as such the same had not vested in the State. The pleadings on this point have already been noted. Some how no issue on this aspect was framed, but the parties did lead some evidence. The learned trial Court decided issue No. 5 in favour of the plaintiff on the ground that the defendant 'totally failed to prove that the village was within the Mechpara Estate' and that it vested in the Government. This facet of the case was perhaps not urged before the learned District Judge and so we do not find any discussion of the same in the impugned judgment. This was nonetheless mentioned before me by Shri Sen and at one point of time I felt that to do complete justice between the parties, I could as well see the real position in this regard. To enable the respondent to produce the necessary notification, time was granted on many occasions and on the learned Government Advocate finding it difficult in producing the same because of lack of full cooperation by the Department, I granted time for the last occasion on 9-7-81, with difficulty, the learned counsel produced a notification before me on 27-7-81, which is published at P 1343 in Part-I of the Assam Gazette dated May 8, 1957, bearing No. RRZ. 20/57/2. This notification speaks of appointment of Shri L. C. Das as Manager of the Estate mentioned in the notification, of which Mechpara Pargana is one. Mention has also been made about Lakheraj Estate in this notification which however belongs to 'Khaschor Noabad' Estate. Apparently, this cannot conclusively show that Chaibari village had also been acquired by the Government.
16. So we have to confine to the materials already on record. As alluded, the learned trial Court came to the conclusion that Chaibari village was not included within Mechpara Estate and as such it did not vest in the Government. In coming to this finding the Court relied in the main on the evidence of D. Ws. 2 and 3. But such a conclusion is not merited on their evidence. D. W. 2, Circle Officer of Lakhipur had clearly stated that Chaibari had formed part of Mechpara. To the same effect was the statement of D. W. 5. The fact that this village was not shown in the list given at the time of acquisition, about which D. W. 2 deposed would not establish the fact that the village did not form part of Mechpara Estate. The purpose of giving the list is not clear from the evidence. D. W. 2 had not testified that 'he has nothing to show that S/L was a Khas land of Mechpara Estate and that it was within the Mechpara Estate' as stated in the Judgment of the first Court. What he had really vouched was that Chaibari village was made 'khas' during last survey settlement, but in his office he had no list of 'Khas' lands of Zamindaris. The deposition of D. W. 3 that he had not given the list, does not mean anything against the respondent after he had asserted that the whole of Mechpara Zamindari had been acquired by the Government.
17. There is another aspect of the matter. -Nothing has been shown as to why more than 2500 bighas of land would have been left untouched by the Government when it was acquiring the parent estate. Thus from the materials on record, it cannot be held that Chaibari village was not acquired. This plea having been taken by the plaintiff it was his burden to establish the same which he has failed. But then, if Mechpara Estate had not shown Chaibari village in its return submitted for the purpose of getting compensation under the Act as averred in the plaint to which there is no specific denial in the written statement, and which aspect was asserted by the plaintiff in his deposition also, it cannot be denied that the respondent owes a legal obligation to pay compensation for it to the legally entitled person. If Mechpara Estate had not claimed the same, I have no doubt that the appellants are the best persons entitled to receive the compensation. Though, in the plaint there is no such prayer, it is always open to the Court to mould reliefs and to grant one which is deemed just, as stated in Kedar Lal v. Hari Lal, AIR 1952 SC 47 and Bai Dosabai v. Mathuradas, AIR 1980 SC 1334. Such a relief can also be allowed under the prayer of granting 'such other relief to which the plaintiff is entitled under law of equity' as stated in para 32 (h). In the present case I would therefore conditionally decree the suit by ordering that if compensation payable under the Act has not been paid to erstwhile Mechpara Estate, the same would be paid to the appellants.
18. The appeal stands disposed of as above. In the facts and circumstances of the case, I would leave the parties to bear their costs throughout. Before parting, I would express my extreme displeasure at the apathy, which I would regard as criminal, shown by the Department in not assisting the learned Government Advocate in producing the relevant notification before this Court. It could well have been that the State might have lost part of this case just because of this lapse on the part of the Department, and I might have decreed the suit in terms of prayers (d) and (f) of the plaint restraining the State to settle tenants or realise rent from them or to interfere with the possession of the appellants. Let this part of the judgment be communicated to the Chief Secretary, Government of Assam, to enable him to take such steps in the matter as are deemed fit and proper by him.