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Shripad Shivram Sardeshpande Vs. Shivram Bhikaji Patki - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 22 of 1932
Judge
Reported inAIR1934Bom466; (1934)36BOMLR1052; 152Ind.Cas.1031
AppellantShripad Shivram Sardeshpande
RespondentShivram Bhikaji Patki
DispositionAppeal dismissed
Excerpt:
appeal - letters patent appeal-points not raised before single bench-whether such points can be raised in letters patent appeal-practice-procedure.;in an appeal under the letters patent, the appellant is not entitled to be heard on points which had not been raised before the judge from whose judgment the appeal has been preferred.;teja singh v. gurcharan singh (1930) i.l.r. 11 lan. 535, followed. - - but, as i have stated above, the exhibit 27 is a serious difficulty in the way of the plaintiff and on that ground alone i hold that the plaintiff has failed to prove his title with the result that he is not entitled to the injunction that he has sought. it lays down that it is a well-settled rule of law that an appellant is not entitled in an appeal under the letters patent to be heard on..........obstruction continuously from very old days and therefore also plaintiffs' ownership on the suit land is established completely (i.e., plaintiffs have become owners by adverse possession),' the point does not seem to have been pressed in the original court, and no issue was raised, the ones framed being the ordinary ones, viz.,(1) whether the plaintiffs prove their title? and(2) whether the plaintiffs prove their possession within twelve years next before suit?3. the original court found in the plaintiffs' favour that they had title and that they had been in possession within twelve years of the suit, and gave them a decree accordingly. on appeal to the district court, this decree was reversed on the ground that the defendants had proved an entry of 1885 in the khoti records of.....
Judgment:

Murphy, J.

1. The plaintiffs, who are khots of the village, sued in the first place for a declaration that they were the owners of some land, the subject-matter of the suit, and for an injunction against the defendants to prevent them from obstructing the plaintiffs' enjoyment. Alternatively, they sued for possession. Although there is a reference in the plaint at page 22 of our record to the following effect-'Plaintiffs' vahivat is going on, without obstruction continuously from very old days and therefore also plaintiffs' ownership on the suit land is established completely (i.e., plaintiffs have become owners by adverse possession),' the point does not seem to have been pressed in the original Court, and no issue was raised, the ones framed being the ordinary ones, viz.,

(1) Whether the plaintiffs prove their title? and

(2) Whether the plaintiffs prove their possession within twelve years next before suit?

3. The original Court found in the plaintiffs' favour that they had title and that they had been in possession within twelve years of the suit, and gave them a decree accordingly. On appeal to the District Court, this decree was reversed on the ground that the defendants had proved an entry of 1885 in the khoti records of the village showing them to be occupancy tenants, a fact incompatible with the plaintiffs' contention that this land was their khoti khasgi land. The decree was consequently reversed, and the suit dismissed. A second appeal was made to this Court, and it was decided by Baker J., who upheld the view taken by the learned District Judge, and dismissed the appeal. He, however, granted leave under the Letters Patent, apparently on the ground that he had overlooked the plea as to title by adverse possession set up by the plaintiffs in their plaint.

4. Mr. Coyajee's contention now is that this was really the plaintiffs' case that although no direct issue in the form of whether the plaintiffs had proved adverse possession for twelve years was framed, the learned District Judge did not come to a definite finding on the point, though he mentions it in the following words-

I may, however, express my opinion on the other evidence in the case because I find that most of the oral evidence cited in this connection on behalf of the plaintiff is such that it cannot help the plaintiff even to identify this land. There are certain tipans, exhibits 59 to 70, produced, but even those tipans do not refer to this particular land. Then as to rent notes, exhibits 72, 76, 78 etc., the persons who passed them, some of them have not been examined, and I think that such evidence cannot be accepted to establish the nature of the plaintiff's title and possession. But, as I have stated above, the exhibit 27 is a serious difficulty in the way of the plaintiff and on that ground alone I hold that the plaintiff has failed to prove his title with the result that he is not entitled to the injunction that he has sought.

5. The only mention of adverse possession in Mr. Justice Baker's judgment is at the very end, where he says that there is no question of adverse possession and the result is that the appeal must be dismissed with costs.

6. Mr. Walavalkar, who appears for the respondent, says that though the appeal was argued for two hours, the point now mentioned by Mr. Coyajee was not discussed at all before Mr. Justice Baker.

7. It certainly seems to us to be quite clear on the facts that, though this question of adverse possession was raised in a half-hearted manner in the plaint, and was denied in the written statement, none of the Courts have looked at the facts from that point of view, and have come to the conclusion they did quite apart from that, and the question is, whether we should at this late stage remand the suit to the learned District Judge and ask him to frame an issue and come to a finding on it in accordance with the plea now set up.

8. Mr. Walavalkar for the other side has pointed out Section 21 of the Khoti Settlement Act, which says

In any other matter the decision of the said Recording-officer shall not be open to-appeal or revision, and shall be binding upon all the parties affected thereby until reversed or modified by a final decree of a competent Court:

Provided that

no person shall be permitted in any Civil Court as a defendant or otherwise, to plead, whether directly or indirectly, that such decision or entry is erroneous or is not binding upon him, if such person is, at the date of the institution of the suit in which the question arises, debarred by the law of limitation for the time being in force from instituting a suit for, or with a view to, the reversal or modification of such decision or entry;....

9. Mr. Walavalkar has also referred to Section 40 and Rule (3) of the rules made under the rule making powers of Government which provides that a hot is entitled to put in a tenant of his own, though in such a case he is not entitled to ask for assistance from Government in recovering his dues. Finally, Mr. Walavalkar has pointed out two rulings of the Lahore High Court, of which I need only refer to the latter one, viz., Teja Singh v. Gurcharan Singh (1930) I.L.R. 11 Lah. 535. This is a judgment of a division bench including the Chief Justice of that Court. It lays down that it is a well-settled rule of law that an appellant is not entitled in an appeal under the Letters Patent to be heard on points which had not been raised before the Judge from whose judgment he has preferred the appeal. Mr. Walavalkar has also relied on the fact that the tenancy in question is not transferable. It can only come to the khot by forfeiture, or under one of the methods contemplated by the Khoti Settlement Act, and it cannot be lost to the occupancy tenant by the knot's adverse possession for the necessary period under the law of limitation.

10. These are the arguments for the other side. On the whole, we think that, in the first place, the point now made was not one which was seriously considered by either of the parties even in the original Court. There is but a casual reference to it in the plaint, and there was no attempt whatever to amend the issues in the original Court. Similarly, in the District Court the point was obviously not pressed even though it had been referred to. In the memorandum of second appeal the grounds of appeal also do not specifically state that the plaintiffs' claim is established by adverse possession for the necessary period, nor was it properly raised in the pleadings, and finally it seems to be clear from Mr. Justice Baker's judgment that the point now put before us is a new one and that it was not argued before him, or seriously pressed, although it may have been mentioned.

11. In the circumstances, we must follow the ruling of the Lahore High Court, and refusing to interfere, dismiss this appeal with costs.


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