Sanjeeva Row Nayudu, J.
1. This second appeal is directed against the judgment and decree of the District Judge's Court, Anantapur, confirming the judgment and decree of the Subordinate Judge's Court Anantapur in Original Suit No. 72 of 1953, decreeing the suit brought by the plaintiffs for a declaration of title and possession in respect of the suit properties.
2. The plaintiffs pleaded in the plaint that they are the absolute owners of the property described in the schedule thereto, the same having been acquired by their late father Venkataramanappa for consideration, from one Boya Kristappa, that the patta of the lands was issued in his name some 35 years before suit, that the plaintiffs' father and after his death, the mother of the plaintiffs as their guardian and subsequently on the plaintiffs attaining majority the plaintiffs themselves, were in possession and enjoyment of the suit property in their own right, that the said possession and enjoyment during the said period about 35 years were open, adverse & peaceful and consequently whatever defect there might happen to be in the title set up namely of the 'acquisition for consideration,' they must be deemed to have perfected their title to the suit property by adverse possession.
3. It is also alleged in plaint that the defendant obtained possession of the suit property, which consisted of about 40 acres of land, through ' court, by falsely and Fraudulently setting up his entitlement thereto, that the defendant had brought an order for valuation of the crops in the lands of the temple of Sri Rama to the extent of about 60 acres, in the same Survey No. 440-B in which the suit land is also included, and that under the cover of the order of Court 'the defendant took away the crops from the suit land also on the ground that he was entitled to the same having given security'. It is also claimed that the defendant had admitted the rights of the plaintiffs to the suit schedule lands in those proceedings. It is also alleged that the defendant has no right, title or interest in the suit land, that his possession is, therefore, unlawful and no better than that of a trespasser. The plaintiffs prayed in the plaint for a decree declaring the plaintiffs' absolute ownership of the suit land, for possession of the same by ejecting the defendant therefrom and for past and future mesne profits and costs.
4. The defendant while denying generally the allegations in the plaint, contended, that the plaintiffs' father did not acquire the suit land for consideration, that the defendant was not aware of any patta proceedings, that on looking into the diglot it was found that the patta for the suit land stands in the name of Boya Kristappa, that the allegation in the plaint that the plaintiff's father and after him, their mother, were in possession of the suit land, is false, that Boya Kristappa the owner was in possession of the suit land throughout, that the plaintiffs had neither title to the suit land nor did they acquire any title by adverse possession, that Boya Kristappa had executed a mortgage in respect of the entire extent of 103 acres in Survey No. 440-B including the suit lands in favour of the defendant, that Boya Kristappa did not discharge the mortgage debt subsequently, that the defendant had to institute a suit O. S. No. 94/1950 for the recovery of the mortgage money, that the suit was contested by Boya Kristappa and was decreed, that the defendant brought the properties to sale and purchased the same in court auction, that long after the sale, the plaintiffs sought to get back the property, and instigated Boya Kristappa to file an application to set aside the sale in the execution proceedings, which ultimately terminated in the defendant's favour, that during the pendency of those proceedings the second plaintiff stood surety in respect of the crops on the entire land of 103 acres, that the plaintiffs admitted in those proceedings that Boya Kristappa and subsequently the defendant were the persons entitled to the suit property, that the defendant took possession through court in execution of his decree, that the plaintiffs did not object to this and that ever since, the defendant had been in possession and enjoyment of the suit land.
The defendant also denied the allegation that he had admitted the plaintiffs' right to 40 acres representing the suit land, that the present suit has been brought at the instance of Boya Kristappa and for his benefit, that subsequent to these proceedings Boya Kristappa had filed a suit O. S. No. 3 of 1947 on the file of the District Court, Bellary claiming 63 acres out of the Acs. 103-9 purchased by the defendant as having been endowed to a deity which suit and the appeal thereon were also dismissed, that having failed in their attempts, the plaintiffs had come up with this false suit. It was further claimed that the plaintiffs had neither title to nor possession of the suit properties and that, therefore, the suit should be dismissed with costs.
5. The learned Subordinate Judge who tried the suit relied on what he calls the admission of the defendant in the written statement and the entries in the cist receipts book filed by the plaintiffs, Exs. A. 2 to A. 5 & A 9 to A 35 as well as Ess. A.1 & A 8 and decreed the suit without giving specific and clear findings on the questions of title as well as adverse possession set up in the plaint. The learned District Judge who disposed of the appeal came to the conclusion that the plaintiffs had title to and possession of the suit land within 12 years before suit, that although there was no documentary evidence in the case proved that the plaintiffs' father and subsequently the plaintiffs have been in continuous possession and enjoyment in their own right from prior to the date of the mortgage, for over the statutory period and had, therefore, perfected their title by adverse possession.
He went further and held that after alienating the suit land to the plaintiffs' father, the mortgagor (Boya Kristappa) fraudulently included it in the mortgage in favour of the defendant, as If he was entitled to the same., On these findings, he confirmed the decree granted by the learned Subordinate Judge.
6. It is contended by the learned counsel for the appellant that this being a suit in ejectment and also for a declaration of title, the burden is heavily on the plaintiffs to make out either that they had title to the suit property by transfer inter Vivos from the owner Boya Kristappa or that they had acquired title by adverse possession and long, continuous and open user of the property in derogation of the rights of the real owner, and that both the courts below approached the issue without either being aware of or applying the principles of the burden of proof applicable to the case. It is further contended that the finding of title given by the lower appellate Court in favour of the plaintiffs is not supported by evidence at all, that the documents intended to serve as evidence of transfer of patta and the tax-receipts relied on by the plaintiffs not being documents of title, cannot establish title even if they are correlated to the so-called oral sale which conveyed no title to the plaintiffs, that there was no evidence in the case to establish the plaintiffs' actual possession of the suit properties, and that assuming that they were in possession, it has not been shown what the nature of their possession was, and whether the possession was intended to be adverse to the real owner or to the mortgagee (the defendant), that the requirements of acquiring title by adverse possession have not been shown to have been complied with by the evidence in this case and that the plaintiffs not having discharged their burden of proof in respect of either title or of the acquisition of title by adverse possession, the suit must have been dismissed.
It is further contended that this is a case of no evidence at all, that the plea of the plaintiffs, can only be given effect to on the basis of legal inferences to be drawn from certain evidence placed before the court, which inferences are pure questions of law, which should be gone into in detail, and where there is no evidence at all and where the evidence has been totally mis-appreciated by the courts below, the interests of justice require that the same should be reappreciated in the proper manner, so that correct legal inferences may be drawn on the evidence available in the case, and that having regard to the peculiar facts and circumstances of the case, Section 100 of the Code of Civil Procedure is no bar to this court re-examining the entire fabric of the case as well as its foundations.
7. As the suit is one in ejectment as a consequential relief to that of declaration of title, the burden of proving the title set up and also the right to eject the defendant from the suit land is, under law, heavily on the plaintiffs and the question which falls to be determined in this second appeal is whether this burden has been satisfactorily discharged and whether the plaintiffs have been able to place sufficient material before the court to justify the inference that they had title to the property, or in the alternative, that they had acquired title by virtue of adverse possession. The pleading in this behalf is, that the plaintiffs are the absolute owners of the property the same having been acquired by their father, Venkataramamppa, for consideration from one Boya Kristappa, about thirty-five years prior to suit, The exact mode of acquisition, the date and the amount of consideration have not been specified in the plaint.
It is submitted in evidence by the second plaintiff that no sale-deed came into existence. No evidence of any description whatsoever, had been placed before the court to prove the alleged oral sale, such as payment of consideration receipt evidencing it or any letters or correspondence passing between the parties settling the terms ot the alleged oral sale. There is absolutely no evidence whatsoever proving the so-called 'acquisition of title for consideration'. It is common knowledge that a plea particularly in respect of title acquired by an oral arrangement requires to he specific and ought to be strictly scrutinised.
The plaintiff has valued the property at Rs. 3,200/- in the plaint, obviously it could not be very much less on the date of the alleged oral sale, to justify the assumption that the oral sale is valid being of immovable property, of a value less than Rs. 100/- having regard to the provisions of the Transfer of Property Act. It requires to be noticed in this connection that there is no statement in the plaint that as the value of the property on the date of the alleged oral sale was less than Rs. 100/-the sale was concluded by an oral arrangement followed by delivery of possession; so that even if one can equate the expression 'acquisition for consideration' to 'purchase by oral sale' followed by delivery of possession, even then, if the sale is to be valid, it must be proved that the property was of a value less than Rs. 100/- on the date of the said sale. No such proof has been adduced in this case.
On the other hand, the plaintiffs' valuation in the plaint clearly shows that the suit property which is 40 acres in extent, is worth Rs. 3,200/-. Therefore, the sale or transfer of ownership of the property, in this case, could not have been effected except by a registered instrument and there being none, the so-called oral sale cannot in law be recognised as valid or allowed to be proved, (Vide Section 54 of the Transfer of Property Act and Section 91 of the Indian Evidence Act), a point which has been strangely enough, overlooked by both the courts below.
8. The next question that falls to be considered is, even if the alleged acquisition of ownership by an oral sale is negatived, whether the plaintiffs could be held to have acquired title to the suit property by adverse possession, fulfilling the retirements of law in this behalf. The plea of adverse possession as set up in the plaint is to the effect that the plaintiffs' father got the patta for the suit land in his name and got into possession some 35 years ago in pursuance of the alleged 'acquisition for consideration', and had thereafter been in possession and enjoyment thereof as owner.
Subsequent to his death, the mother of the plaintiffs as the latter's guardian and subsequently the plaintiffs themselves, were in possession and enjoyment of the said land in their own right and that, the possession was open, adverse and peaceful and thus they had perfected their title to the suit property by law. In support of this plea, the plaintiffs did not produce the patta which they claim their father had obtained, and under which their father got into possession of the suit lands. Any such patta would at least have served as some evidence of possession, although a patta by itself cannot be regarded as a document Or evidence of title or a title-deed; vide Mooka Kone v. Ammnakutti Ammal, AIR 1928 Mad 299 (FB).
Whether a patta can be regarded as evidence of title, or regarded as evidence of possession, the Fact remains that no patta has been produced by the plaintiffs, and the question, therefore, becomes purely academic. It is also significant to note that no explanation had been given by the plaintiffs for the non-production of the patta in question. On the other hand, reliance is sought to be placed on a certified copy of an extract from the 'Changes Register' for Raktala village where the suit lands, are situated. (Ex. A. 8). Ail that this extract shows is that in respect of Acs. 103-9 cts. in Survey No. 440-B (which was included in the mortgage in favour of the defendant, executed by Boya Kristappa the owner) there has been no change of patta in the years 1926, 1927 and 1928, and strangely in column 5 there is an entry to the following effect:--
'Patta granted in favour of Boya Kristappa and the sons of the deceased Madamanchi Venkata Ramanappa viz. (1) Venkanna; (2) Ramappa, minors by mother and Guardian Lakshmamma'.
This entry bears no signature and no date. It is sought to be argued for the plaintiffs that, although, no date is entered, this entry in column 5 must have been there sometime prior to 8-6-1926 which is the date noted in column 6 below the initials 'K. K.' attesting the note 'No change' in the said column. Ex. A-8 has not been proved at all and cannot, therefore, be received in evidence. P. W. 1 who styles himself as the Village Magistrate and who was the Village Karnam of Raktala only for the three years prior to his giving evidence on 6-1-1953, whose father had been the karnam for 20 years Prior to 1943, does not speak to Ex. A 8.
Both the courts below proceeded on the footing that the entries entered in Ex. A 8 could be treated as evidence, without applying their mind to the fact that the document Bad not been proved. Further even assuming that Ex. A 8 is a public document, there is nothing to indicate that the endorsement quoted above in column 5 of Ex. A 8 was made in the course of official business and' by whom. At least if the patta that is said to have been granted according to the entry in favour of Boya Kristappa and the plaintiffs had been produced, that would have been of some assistance to them.
In the absence of production even of that patta, no weight or value could be attached to the entries in Ex. A 8 and more particularly to the entry in column 5, which I will presently show, could not have been a correct and a genuine entry. The plaintiffs have produced Ex. A 9 which is the earliest of the cist receipts found entered In the cist receipt book. This is dated 23-1-1928 and shows that cist was paid in respect of Kulam No. 210 for fasli 1337 by the plaintiffs' father on 23-1-1928.
According to this document, even by 23-1-1928, the plaintiffs' father was alive and he paid the cist a fact which was accepted and relied on by the lower Appellate Court. If the father of the plaintiffs bad been alive by 23-1-1928, then obviously, the entry in column 5 of Ex. A 8 which describes the plaintiffs' father as 'deceased', could' not have been, therefore, made either On or prior to 8-6-1926 (the date noted in column 6). The only reasonable inference to draw from this is, that the entry in column 5 of Ex. A 8 could not have been made earlier than 23-1-1928 the date of Ex. A-9 upto which time at least the plaintiffs' father could be said to have been alive.
So that it follows that the entry in column 5 must have been made sometime after the entry in column 12, which shows that Ex. A 8 is thoroughly unreliable, as it obviously had not been kept in the usual course of official business. If, on the other hand, it is to he held that the entry in column 5 had been made even before 8-6-1935 then the entry would be false, because the plaintiffs' father was alive and he was not deceased by the time the entry could be said to have been made. No weight or value could be attached to the entries in Ex. A 8 apart from the fact that these entries had net been proved at all, to be treated as evidence.
9. The next document on which reliance has been placed is Ex. A 1 which purports to be an extract from No. 10 Part 1, Account relating to Survey No. 440-B of Raktala village which is the cultivation account of the year 1937. Even this document has not been properly proved as P. W. 1 who produced it, has himself no personal knowledge of its contents. The utmost that can be inferred from this document is, as to who cultivated the land during the year to which the account refers. Ex. A 1 in the case merely shows the names of Boya Kristappa and the plaintiffs being minors by guardian and mother Lakshmamma, without any further indication as to what extent of 103 acres in Survey No. 440-B has been' cultivated by the plaintiffs (who were shown as minors in this document) or by their mother whether they were cultivating it in their own right or as merely lessees, and in what capacity the cultivation was effected.
This being the case, Ex. A-l is in my opinion, useless as evidence of possession of the suit property by the plaintiffs much less can it be said to afford proof that such possession was adverse to the real owner. By the date of Ex A-1 both the plaintiffs were minors, 1st plaintiff being of the age of 24 and the 2nd plaintiff being 20 years old. Obviously their description as minors in Ex. A-1 is clearly wrong and throws doubt on the truthfulness of toe document.
10. The plaintiffs also relied on a rough notebook made up of a number of sheets stitched together wherein are some entries. Exs. A-2 to A-5 and A-9 to A-85 purporting to be entries relating to the payment of cist by the father of the plaintiffs and 'by Lakshmamma and subsequently by the plaintiffs. Of these the earliest cist receipt is Ex. A-9 which bears the date 23-1-1928 and which shows that cist was paid in respect of kulam 210 by China Venkataramanappa, the plaintiffs' father on 23-1-1928, as has already been noticed.
The next two entries Exs, A-10 and A-11 which are of date 10-1-1929 purport to be in the name of plaintiffs' mother Lakshmamma. None of these entries, except A-2 to A-5 has been proved, and they do not establish anything at all except that a certain sum of money towards the cist in respect of some portion of the land in Kulam 210 has been paid. What portion it is, what is the extent, what is the rate and in what capacity the cist was paid -- are not given in these entries. P. W. 1 who seeks to prove the handwriting of his father in Exs. A-2 to A-5 admits that he has no personal knowledge of the payments said to have been made under these entries.
It is not explained how A-2 to A-5 came to he issued by the Karnam when it is the Village Munsiff that collects the cist and issues the receipts in token of such collection. Such entries in ordinary loose sheet stitched books could be brought into existence at any time and even otherwise they have absolutely no evidentiary value to show the fact of possession or the nature of the possession. For instance, if the possession is merely permissive as that of a lessee, no question of acquisition of title by adverse possession would arise merely from the circumstance of payment of cist.
In fact it is admitted by P. W. 1 in his evidence that 'there are several instances when parts would be in the name of one person and the enjoyment with another'. I am, therefore, clearly of opinion that neither Ex. A-8 nor Ex. A-l nor Exs, A-2 to A-5 and A-9 to A 35 can be deemed to be of any assistance to the plaintiffs either separately or taken together, to establish that the plainiffs. were in possession of the suit lands during the relevant period, and a fortiori that they are in possession in their own right and adverse to that of the real owner.
11. Reliance has been placed by the plaintiffsat the trial on lease-deeds Exs. A-8, A-7, A-36 andA-37. These have been discredited by the trialJudge who refused to attach any value to them onthe ground that these are on plain sheets of paperand such documents could be brought into existence at any time. Ex, A-6 is of the year 1944;Ex. A-7 is of the year 1942, Ex. A-37 is of theyear 1941, and Ex. A-36 is of the year 1940. Evenif any weight could be attached to these documents as evidence of possession, they cannot helpthe plaintiffs as the earliest of them namely Ex.A-36 is within 12 years before suit. ... :
No inference of adverse possession could be drawn from these yearly leases. A perusal of these leases shows that they were written on plain paper and are not registered. The evidence of P. Ws, 2 and 3 has been adduced to prove the leases, Exs. A-6 and A-7 respectively. The evidence of these witnesses is, in my opinion, thoroughly unreliable and having regard to the fact that some of these leases which purport to be fairly old have not been produced at any earlier stage, the learned Subordinate Judge was right in refusing to attach any importance or value to these documents. The learned District Judge, on appeal, has not cared even to refer to these leases and discuss their value as evidence.
12. It may be seen from a consideration of the documentary evidence produced by the plaintiffs, and which has been considered by me above, that there is no evidence of title or of possession for a period. years adversely to the real owner Boya Kristappa, or adversely to the mortgagee (the defendant) whose mortgage came into existence as far as back as 31-7-1929. As against this, on behalf of the defendant, reliance is sought to he placed on Ex. B 1 which is an extract from the Resettlement Register in 1924. The entry in column II shows that in the year 1924 the entire land covered by R. S. No. 440-B including the suit land was registered in the name of Boya Kristappa.
There is no reference whatsoever to the names of the plaintiffs or their mother or father. If as contended by the plaintiffs that they were in possession of the suit lands as far back as 1916 onwards, that the patta for the land had been transferred in the name of the plaintiffs' father then itself, it is not explained why in the Re-settlement Register of the year 1924, only Boya Kristappa's name is given as the pattadar. The absence of any reference to the names of the plaintiffs father, in Ex. B-1 clearly establishes that by the year'1924, the patta stood in the name of Boya Kristappa alone and not in the name of the plaintiffs' father so that any doubt that might have been cast on the matter by Ex. A-8 which as I have already pointed out, has no evidentiary value is dispelled and cleared up by Ex. B-l from which, the conclusion is inevitable that at least by 1924, the plaintiffs had no patta for the suit land in their names.
This circumstance, coupled with the non-examination of Boya Kristappa, who according to the plaintiffs was the person who conveyed the property to their father by an oral sale and allowed him to get his name entered in the village accounts as pattadar with Boya Kristappa and thus enabled them to acquire title by adverse possession, covers the case or the plaintiffs with suspicion. The lower appellate court as well as the trial court failed in their duty in not drawing an inference against the plaintiffs from this important circumstance namely the non-examination of Boya Kristappa.
13. It may be seen from the above:
(1) that the plaintifls have totally failed to make out the title set up by them viz., acquisition for consideration of the suit land;
(2) that they tailed to produce either the patta said to have been issued in favour of their father or the patta said to have been issued in their favour after the death of their father;
(3) that the suit lands which admittedly formed part of a single Survey No. 440-B was not shown to have been separated or partitioned or separately registered or that the same was in plaintiffs' separate possession;
(4) that no official documents such as adangals, or entries in the Revenue accounts have been produced by the plaintiffs to show that the property stood registered in their name or that they were in possession and enjoyment of the properties in their own right;
(5) that no other evidence has been produced to show that the plaintiffs were in possession of the suit lands and adversely to the real owner Boya Kristappa or to the mortgagee, namely, the defendant. Having regard to the above circumstances, and the total failure of the plaintiffs to make out their title or the acquisition of right to the suit property by adverse possession, a burden which was very heavily upon them, it is not necessary to consider the pleas, and the evidence of the defendant as the case fails on account of the plaintiffs not having discharged the burden of proof resting on them. However, as the evidence has been produced and considered by the courts below, I shall briefly advert to the same for the sake of completeness.
14. The defendant obtained a mortgage of an extent of 103 acres and 9 cents comprising R. S. No. 440-B, from Boya Kristappa the original owner, under the document Ex. B-9 D/- 31-7-1929. In enforcement of this mortgage, he brought a suit O. S, No. 94 of 1940 for recovery of money due in the District Munsif's Court, Bellary which was decreed on contest. In pursuance of the said decree, the defendant filed E. P. No. 92 of 1942, and brought in consequence the properties to sale which sale was held on 19-4-1943 and the entire property was purchased by the defendant in partial satisfaction of his decree. The sale in question was confirmed under Ex. B. 13 on 10-6-1943 and the defendant obtained possession of the properties through court, as evidenced by the Delivery Receipt, Ex. B. 10, on 11-7-1943. Subsequently Boya Kristappa filed a petition under Order 21 Rule 90 of the Civil Procedure Code, to have the sale set aside. This petition was allowed. Against the order allowing the petition, the defendant filed an appeal A. S. No. 153/43 in the District Court, Bellary and applied for stay of re-delivery of the property in I. A. 248/ 43.
The District Judge granted interim stay. There upon Boya Kristappa fifed I. A. 250/43 in the District Court, Bellary. for vacating the interim stay. It was then that a Commissioner was appointed by the District Court on 27-10-1943 to estimate the crops on the land. Ex. B. 4 Is the warrant issued to the Commissioner. The crops were estimated by the Commissioner in his report Ex. B. 8 D/- 2-11- 1943, at Rs. 1,150/-. Boya Kristappa was thereupon ordered to furnish security for the amount, which he did by filing a draft bond executed by both the present plaintiffs. This is Ex. 13. 11 and it was filed into court on 11-11-1943. The fair bond Ex. B. 12 was filed into court on 12-11-1943; but this was executed only by the second plain tilt. The plaintiffs undertook in Ex. B. 11 to stand guarantee for Boya Kristappa in the sum of Rs. 1,150/- representing the value of the crops standing on the suit properties of 103 acres and odd, which was the value of the crop estimated by the Commissioner.
The appeal to the District Court was ultimately, dismissed and the defendant appealed to the High Court of Judicature at Madras and the High Court allowed the appeal and cancelled the order setting aside the sale and confirmed the sale in favour of the defendant. In pursuance of the orders of the High Court in 1947, the defendant again applied for and obtained delivery of possession of the entire extent of 103 acres and 9 cents and also claimed restitution of the value of the crops by enforcing the security bond Ex. B. 12 executed by the second plaintiff against the latter and Boya Kristappa, and the defendant remained in possession ever since. Boya Kristappa subsequently instituted a suit O. S. No. 3 of 1947 in the District Munsif s Court, Bellary against the defendant claiming 63 acres and odd of the 103 acres and 9 cents, as property endowed to a deity.
This suit was dismissed and an appeal preferred against that by Boya Kristappa was also dismissed. It is the contention of the defendant that having failed in his attempts to get hold of 63 acres and odd, Boya Kristappa set up the plaintiffs to bring the present suit for the remaining 40 acres.
15. It is contended by the learned counsel for the appellant (defendant) that at no time during all these proceedings did the plaintiffs come forward either with a claim petition or with an objection petition, nor did they offer any obstruction to the delivery of the properties being taken, on both the occasions, by the defendant i.e., on the first occasion in 1943 on the second occasion in 1947. Not only did they not take any exception to any of these proceedings which had been going on obviously to their knowledge, but the plaintiffs offered also to furnish security in respect of the crops on the entire extent of 103 acres and 9 cents, which included the present suit properties, as can be seen from the Commissioner's report Ex. B. 8.
If really the plaintiffs had title to these properties, and had acquired these properties adversely tp the real owner, would they have remained indifferent to all that was going on in respect ot the suit properties and would they have, without objection and willingly, stood surety for Boya Kristappa in respect of the crops on the suit lands? This conduct on the part of the plaintiffs, apart from affording a valid foundation for a plea of waiver, indicates clearly that they were never conscious of having any rights in the suit properties were put forward by Boya Kristappa, who remained behind the curtains, having failed in every proceeding to defeat the rights of the appellant, taking advantage of the fact that the appellant and the village officers were not on good terms with each other.
It is contended by the learned counsel for the appellant, in my opinion, not without force, that even the few documents that were brought into existence in collusion with the village officers, the Village Karnam and the Village Munsiff, who were out to outwit the defendant on account of the enmity prevailing for a long time between him and them, do not help the plaintiffs in any manner.
16. It is also doubtful whether a person aggrieved by the orders of a court of law made under Order 21, Rule 92, C. P. C. directing the sale of the property in question to be made absolute and under Order 21 Rule 96 C. P. C. directing delivery of possession thereof to the purchaser, could bring a suit without invoking the court's jurisdiction either under Order 21 Rule 90 or under Order 21, Rule 100 C. P. C. particularly when the plaintiffs had notice of these proceedings. Assuming that such a suit could 'be brought, there must be a prayer in the suit for a declaration that the orders of the court making the sale absolute and delivering possession of the properties in question to the defendant are unsustainable in law and must be set aside. As it is, no such prayer has been asked for in the plaint.
17. There is one other point which, in my opinion, requires to be noticed in the disposal of this second appeal. It must be noted that Boya Kristappa executed a mortgage in favour of the appellant for the entire extent of 103 acres and 9 cents in the year 1929. This being an undisputed fact, the further question that requires to be considered is, whether the plaintiffs or their father acquired right to the suit properties by adverse possession for the period of 12 years prior to the date of this document, for, if they did not do so and it their so-called adverse possession started in the year 1924 or 1926 as differently viewed by the two courts below, there being no acquisition of right by adverse possession for 12 years prior to the execution of the mortgage, the fact that the original owner Boya Kristappa mortgaged the suit properties in favour of the defendant showed that he dealt with the property in his own right and the execution of the mortgage itself is an act sufficiently destructive of any possible acquisition of rights in the plaintiffs or their father by adverse possession.
Even if it is held that the so-called adverse possession started prior to the mortgage for a year or two or three or four, as the case may be, the execution of the mortgage by the real owner on the suit properties is an act of assertion of ownership, and interrupts the so-called running period of adverse possession. It is for this reason, that apparently advisedly, the plea was taken in the plaint that the plaintiffs' father acquired the suit property about thirty-five years before suit i.e., thirty-five years before 12-9-1951 which takes us to 1916. That gives a period little over 12 years prior to the date of the execution of the mortgage namely 31-7-1929. This fact has escaped the notice of both the courts below, who tried to explain away the admission 'that the title to the suit property and the transfer of patta took place about 35 years before suit', by stating that the plaintiff could not have had personal knowledge of the same.
The trial court brought the period down to 30 years with no justification whatsoever and in fact it is improper for the courts below to have ignored the specific plea with which the plaintiffs came to court, and to try to make out a different case for the plaintiff. Having thus adjusted the period of origin of the plaintiffs' tide as claimed, both the courts below arrived at different findings as to the date when possibly the title of the suit property in the plaintiffs' father must have taken place prior to 1926, the lower appellate court proceeds on the assumption that it is incorrect to say that the plaintiffs' lather died prior to 1926, that he must have been alive by the date of Ex. A.9 which is 23-1-1928.
At the same time, the lower appellate court traced the beginning of the title of the plaintiffs' father to a period sometime after 1924 (about 26 years before suit) and not 35 year, prior to suit as claimed in the plaint while the trial court found that the plaintiffs' father must have acquired the suit property just before his death, which according to the lower appellate court was in 1928. It can be seen from this that there is no concurrence and, on the other hand, there is considerable divergence in the findings reached by the two courts below on the material facts bearing on the case of the plaintiff, neither of which findings, in my opinion, are correct nor are they justified on the evidence in the case.
18. The further question that tails to be determined is whether in the circumstances of this case, having regard to Section 100 C. P. C. this court is competent to interfere and do justice by passing the correct order that should be passed in the matter, namely, dismissing the suit for want of proof. It has often been stated that Section 100 C. P. C. is an inexorable provision which tied the hands of the High Court so firmly that there is no escaping from, it and that whatever the consequences be, that is, however, unjust and untenable the inferences drawn and the conclusions reached by the lower court may be on the facts and on the evidence, this court should not interfere in Second Appeal. With great respect, I am unable to subscribe to such a sweeping and general proposition which, in my opinion, cannot be regarded as legally sound or accurate. Section 100 C. P. C. is as follows;
'100. (1) Save where otherwise expressly provided in the body of this Code or by any other Jaw for the time being in force, an appeal shall lie to the High Court, from every decree passed in appeal by any court subordinate to a High Court, on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect of the decision of the case upon the merits.'
The latest pronouncement of the Supreme Court in regard to Section 100 C. P. C. is found in a judgment of that court in Deity Pattabhirama Swamy v. Hanymavya. Civil Appeal No. 80 of 1954 D/- 19-5-1958: (AIR 1959 SC 57). The decision in that case proceeded mainly with reference to the particular facts of that case, and based on those facts, their Lordships of the Supreme Court observed as follows:
'It is, therefore, clear that the learned Judge in effect and in substance considered the entire evidence -- oral and documentary and came to the conclusion different from that arrived at by the learned District Judge.
The finding on the title was arrived at by the learned Dist. Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding.'
Having so held on the facts, their Lordships relied on two judgments of the Privy Council reported in Mt. Durga Chowdhrain v. Jawahir Singh 17 Ind App 122 (PC) and Midnapur Zemindari Co., Ltd. v. Uma Charan Mandal, 29 Cal WN 131 : (AIR 1923 PC 187). The first of these cases was a case under Section 564 of the old C. P. C. (Act XIV of 1882).
'584(1) Unless when otherwise provided by this Code or by any other law, from all decrees passed in appeal by any court subordinate to a High Court, an appeal shall lie to the High Court, on any of the following grounds (namely)--
(a) the decision being contrary to (some specified) law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure as prescribed by this Code or any other law, which may possibly have produced error or detect in the decision of the case upon the merits.'
There is some difference between the two sections particularly in Clause (1) (a) which under the old C. P. C. (Act XIV of 1882) required that the decision should be contrary to some specified law or usage having the force of law; whereas under the present section Clause (1) (a) it is enough if the decision is 'contrary to law or to some usage having the force of law'. This amendment has certainly the effect of widening the scope of the previous Clause (1) (a) of the old C. P. C. (Act XIV of 1882). In the course of their judgment, their Lordships of the Judicial Committee, no doubt, observed as follows:
'It is enough in the present case to say that an erroneous finding of fact is a different thing from an error or detect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of tact, however gross or inexcusable the error may seem to be.'
This passage has been extracted by their Lordships of the Supreme Court in their judgment quoted above. On the point under consideration, this passage seems, for all intents and purposes to be fairly clinching. But on a careful perusal of the judgment itself, it would be seen that what their Lordships of the Judicial Committee meant was that the general observations made by them would have to be regarded in the light of the limitation that followed; for immediately following the passage quoted above, we find the following sentence:
'Where there is no error or defect in the procedure, the finding of the First Appellate Court upon a question of fact is final, if that court had before it evidence proper for its consideration in support of the finding'.
19. In other words, according to their Lordships of the Judicial Committee, the first appellate courts finding will be binding on the High Court, provided the following condition is fulfilled namely that the first appellate court had before it evidence proper for its consideration in support of the finding; which means that there must have been evidence before the first appellate court, admissible and adequate, to justify the finding and that evidence must have been properly considered by the said court in arriving at that finding.
Their Lordships of the Judicial Committee placed reliance on two of their earlier decisions reported in Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani. 14 Ind App 101 (PC) and Pertab Chunder Ghose v. Mohendra Purkait, 16 Ind App 233 (PC). In 14 Ind App 101 (PC) the following observation is found at page 110:
'But it was, in the opinion of their Lordships, within their jurisdiction to dismiss the case, it they are satisfied that there was as an English lawyer would express it, no evidence to go to the jury because that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge. '
In 16 Ind App 233 (PC) their Lordships of the Judicial Committee while doubting whether the judges of the High Court in hearing the appeals, had regard to the provision in the Code of Civil Procedure (Act XIV of 1882), Section 584, as to appeals from appellate decrees, and observing that the limitations to the power of the court by Sections 584 and 585, in a second appeal, ought to be attended to, however, confirmed the judgment of the High Court which interfered with the judgment of the District Judge holding that the decrees of the High Court are the proper ones and dismissed the appeals.
20. The second case relied on in the Supreme Court judgment quoted above, is that of the Judicial Committee in 29 Cal. WN 131: (AIR 1923 PC 187). The passage quoted in the judgment of the Supreme Court may be taken to substantially indicate the purport of the decision. In this case, the High Court concurred with the view taken by the District Judge and their Lordships of the Judicial Committee agreed with that decision and dismissed the appeals. Their Lordships observed in the concluding portion of their judgment as follows:
'Their Lordships are unable to see that there has been any error in law on the part of the District Judge and of the High Court, and that being so they neither desire nor are entitled to criticise the merits or otherwise of the conclusion of fact.'
21. The decision of the Supreme Court referred to above proceeded on a finding recorded is the judgment in the following terms:
'It will be seen from the aforesaid narration of facts that the High Court interfered with the finding of fact given by the District Judge on the question of title by taking a different view of the evidence accepted by the learned District Judge.'
and in the closing paragraphs of the judgment, we find the following observations:
'This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, C. P. C. We have, therefore, no alternative, but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no jurisdiction to interfere in Second Appeals with, the findings of fact given by the first Appellate Court based upon an appreciation of the relevant evidence.'
22. The whole matter mainly turns upon the meaning in law and the interpretation of the words 'contrary to law' appearing in Clause 1(a) of Section 100 C. P. C. Their Lordships of the Supreme Court did not address themselves to this aspect of the matter in the above decision as the case before them was a very clear one, where there is apparently enough admissible and relevant evidence on which the District Judge could have arrived at a finding of fact which was sought to be interfered with by the High Court in second appeal.
23. In a decision reported in Edwards V. Bairstow and Harrison. 1956 A.C. 14, a similar question came up for consideration. In that case the Crown in England had sought to charge the respondents with income-tax upon the profit arising from the purchase and sales of certain spinning plant acquired and sold during the period 1946 to 1948. This profit, it is said, came from a trade manufacture, adventure Or concern In the nature of trade' and so is taxable under case I of Schedule D of the Income-tax Act, 1918 which was in force in England. The Commissioner for the General Purposes of the Income-tax for the Division of West Morley in the County of York, to whom the respondents appealed against the assessments, determined that the 'transaction' which was their subject-matter was not an adventure in the nature of trade and discharged the assessments.
In the High Court the Crown's appeal was dismissed by the learned Judge (Wynn-Parry J.) on the ground that the determination was 'purely a question of fact' and that accordingly it was not open to the court to interfere with it. The matter was treated in exactly the same way in the court of appeal. What are questions of tact and in what circumstances, can a finding of fact of the court of first appeal be interfered with, came up for consideration by the House of Lords in this case in view of the fact that by the system that has been set up under the Income-tax Act in question, the Commissioners are the first Tribunal to try an appeal and in the interests of efficient administration of justice their decisions can only be upset in appeal, if they have been positively wrong in law and the court has no second opinion when there is reasonable ground for the first. It is, in these circumstances, that the whole question came to be examined by Lord Radcliffe, who wrote the judgment on behalf of the House of Lords. The following passages from the judgment are apposite and throw considerable light in determining the scope and limitations of a similar provision in Clause (1) (a) of Section 100 C. P. C.:
'My Lords, I must apologise for taking so much time to repeat what I believe to be settled law. But it seemed to be desirable to say this much, having regard to what appears in the judgments in the courts below as to a possible divergence of principle between the English and Scottish Courts, f think that the true position of the court in all these cases can be shortly stated. If a party to a hearing before Commissioners expresses dissatisfaction with their determination as being erroneous in point of law, it is for them to state a case and in the body of it to set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts arc incapable of being themselves findings of fact although there is value in the distinction between primary facts and inferences drawn from them.
When the case comas before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously, erroneous in point of law. But, without any such misconception appearing ex-facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In the circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination.
So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination, or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.'
24. Summarising the various decisions relevant to the issue under consideration, the following categories of findings may be regarded as coming within the scope of Clause (l)(a) of Section 100. C. P. C.
(1) Where the decision is based on no evidence;
(2) where the decision is based on evidence which no reasonable individual having regard to Section 3 of the Indian Evidence Act would consider sufficient basis for the decision;
(3) where the decision is based on evidence which this court considers insufficient in Jaw to support it;
(4) where an apparent illegality has been committed:
(5) where an express provision of law has been disregarded which affects the merits of the decision;
(6) where the decision of the lower appellate court is otherwise against law and hence legally unsustainable.
In all the above cases, I am clearly of opinion that it is the plain duty of this court to interfere and to do justice where such interference is called for or necessitated for the purpose of doing justice between the parties. There is nothing in Section 100 C. P. C which should support the view that a finding of fact of the lower appellate court however absurd and unsustainable is binding on this court and should be blindly followed with the full consciousness that doing so is in violation of the interests or justice, In my humble opinion, there should always be a proper appraisement of the merits of each case, in the light of the law and the evidence that has been made available.
If the case falls within one Or the other of the categories set out above, the appeal should be entertained and the proper and correct decision should he arrived at without imposing upon ourselves any exceptional restraints because we are dealing with second appeals.
25. Applying the above principles, I have no difficulty in coming to the conclusion that in this case, the courts below have arrived at findings, which, in my opinion, no reasonable man would reach having regard to the requirements of proof as laid down in the Indian Evidence Act. As already pointed out, no evidence is available on the question of title and as no satisfactory evidence is available to Justify the conclusion that the respondents were in possession of the suit property at all and assuming that they were in possession for any period of time, that that possession fulfilled the requirements of law in order that it could be regarded as adverse to the real owner and any person claiming rights under him, namely that the possession extended over a continuous period of 12 years, Nee vi, nec clam, nec precario, the decision of the lower Appellate Court is totally unsustainable in law and must be set aside.
26. In the circumstances, the second appealhas to be allowed. The decree of the lower appeallate court is set aside and the plaintiffs' suit isdirected to be dismissed with costs throughout. Noleave.