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Abdul Rahman and ors. Vs. Girjesh Bahadur Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All235
AppellantAbdul Rahman and ors.
RespondentGirjesh Bahadur Pal and ors.
Excerpt:
- - the ancestors of the plaintiffs objected on each occasion, but without success. it is contended on behalf of the defendant-respondent that the appeal must fail because it is impossible to differ, antiate the interests of mt. it was held in this case, as in many others, that the test to determine whether or not the failure to bring upon the record the heirs of one of several respondents, who is dead, has the effect of causing an abatement of the entire appeal, is as to whether or not the appeal can be decided without, as a result of that decision, bringing into existence two decrees contrary to each other. 67) with the land which was the subject of litigation in 1896. there are certain other matters in respect to which the judgment of the court below is not very satisfactory and.....collister, j.1. this is an appeal by plaintiffs, which arises out of a suit concerning certain plots of land on the north side of the river ganges. the ghagra runs between the districts of basti and fyzabad, the former being on the north and the latter on the south. there is a village of she basti district known as kharakpur and adjoining it on the west is the village of harbanspur. harbanspur consists of three mahala. mahal no. 2 is contiguous with kharakpur, then comes mahal no. 1 in the middle and then mahal no. 3 on the west. defendant 1, girjesh bahadur pal, is the owner of kharakpur. mahal no. 1 and mahal no. 2 of harbanspur are owned by the plaintiffs and their oosharers all residents of harbanspur. defendant 1 has a patti in mahal no. 3, the rest of which is owned by the.....
Judgment:

Collister, J.

1. This is an appeal by plaintiffs, which arises out of a suit concerning certain plots of land on the north side of the river Ganges. The Ghagra runs between the districts of Basti and Fyzabad, the former being on the north and the latter on the south. There is a village of She Basti district known as Kharakpur and adjoining it on the west is the village of Harbanspur. Harbanspur consists of three mahala. Mahal No. 2 is contiguous with Kharakpur, then comes mahal No. 1 in the middle and then mahal No. 3 on the west. Defendant 1, Girjesh Bahadur Pal, is the owner of Kharakpur. Mahal No. 1 and mahal No. 2 of Harbanspur are owned by the plaintiffs and their oosharers all residents of Harbanspur. Defendant 1 has a patti in mahal No. 3, the rest of which is owned by the plaintiffs and their cosharers. The dispute in this litigation is concerned with a parcel of land which according to the plaintiffs, appertains to mahal Nos. 1 and 2 of Harbanspur.

2. It appears that the course of the Ghagra is in the habit of fluctuating. The judgment of the Court below narrates that in 1883 a portion of Harbanspur and Kharakpur south of the Soti tributary was sub-merged and it re-appeared on the south of the river Ghagra at Sharfuddinpur in the district of Fyzabad. It was settled with the proprietors of Sharfuddinpur on 9th May 1884. Subsequently it re-appeared on the north of the river, but was again settled with Sharfuddinpur. The ancestors of the plaintiffs objected on each occasion, but without success. In 1886 the land was made part of the Fyzabad district, i.e. ill was attached to Sharfuddinpur. Defendant 1 - or rather his father - thereafter instituted a suit against the cosharers of Sharfuddinpur for possession of the whole area which had re-appeared, and on 28th June 1890 that suit was decreed. The plaintiffs say that the defandant obtained possession not only of land which belonged to him by right, but also of land which had originally belonged to the cosharers of Harbanspur, who were not parties to that litigation.

3. In 1896 the cosharers of Harbanspur sued for possession of a portion of this alluvial land which they claimed as theirs and that suit was partly decreed and partly dismissed; but on 29th June 1897 the suit was wholly dismissed by the Appellate Court on the ground of limitation. Since then, according to the plain, tiffs, the river has several times changed its course, thereby bringing about the sub. mergence and emergence of land on its north and south sides. From 1898 to 1907 the land to the south of the Soti tributary was again under water. In 1907 it emerged apparently on the north side. Learned Counsel for the defendant-respondent does not admit that it was again submerged after that, but according to evidence given for the plaintiffs it was submerged from 1916 to 1924, when it emerged for the last time. The plaintiffs say that they then took possession of it and it was recorded in the revenue papers as appertaining to Harbanspur. Subsequently, there were proceedings under Section 145, Criminal P.C. which terminated on 3rd November 1927 in favour of the defendants, who had dispossessed the plaintiffs; and hence this suit, which was instituted on 17th September 1928.

4. There are four parties of defendants in this suit. Defendant 1, as we have already said, is the proprietor of Kharakpur, defendants second party are his tenants and defendants third party are co-sharers with the plaintiffs; and defendants fourth party are tenants of the plaintiffs and of defendants third party. Leaving aside the admitted facts, the case for the plaintiffs as set out in their plaint may be briefly summarized as follows : The plots specified in the three lists A, B and C appended to the plaint appertain to Harbanspur, and the plaintiffs and the defendants third party are the owners thereof; defendant 1 has no right or title to them. The plots in list A are being cultivated by defendants fourth party as tenants on behalf of the plaintiffs and defendants third party : the plots in list B are khudkast of the plaintiffs and the defendants third party and Jhau and Kasahri are grown in the plots in list C. In 1924 the river took its present course and the land in dispute was shown in the revenue papers as appertaining to Harbanspur. In 1927 it became culturable and the plaintiffs and defendants third party and defendants fourth party sowed a crop in the plots shown in list A and list B; but defendant 1 in collusion with the patwari of his village caused these plots to be recorded as appertaining to Kharakpur and as being in the occupation of defendants first and second party, who proceeded on 21st September 1927 to out and appropriate the crop which had been sown by the plaintiffs and defendants third and fourth party on the aforesaid plots. There was a criminal case, as a result of which the servants of defendants first and second party were punished. The value of the crop was Rs. 1350 and the plaintiffs and defendants third and fourth party are entitled to compensation therefor. Defendant 1 wrongly caused plots Nos. 141 and 142 in list C to be entered as plot No. 16 of Kharakpur, and in connexion with this plot proceedings were taken under Section 145, Criminal P.C. These proceedings terminated in favour of defendant 1 but the decision was wrong and the plaintiffs and defendants third party are entitled to Rs. 300 as damages for the Jhau and Kasahri which were out. The plaintiffs and defendants third and fourth party are in possession of all the plots; but if the contrary is found, then the defendants third and fourth party are trespassers.

5. The relief's prayed for were:

(1) That it be declared that the plots shown in lists A, B and C are in Harbanspur, that they are owned by the plaintiffs and defendants third party and that they are possessed by the plaintiffs and defendants third and fourth party.

(2) If it be found that defendants first and second party are in possession, then & decree for possession may be passed in favour of the plaintiffs.

(3) That compensation to the extent of Rs. 1350 on account of the crop of the plots in lists A and B and to the extent of Rs. 300 on account of the Jhau and Kasahri in the plots in list C be awarded.

6. The main contesting defendant was defendant 1. He alleged that the plots in suit belonged to Kharakpur and not to Harbanspur that they are in the possession of defendant 1, that the suit is barred by the rule of 12 years' limitation and that it is barred by Section 11, Civil P.C. It was further alleged that sinoe the contesting defendant is a co-sharer in Harbanspur, the proper remedy for the plaintiffs was to sue for profits in the Revenue Court. It may be mentioned here that a custom concerning alluvion and diluvion was set up in para. 6 of the plaint and was denied by defendant 1. There was an issue on this plea (issue 6), but it was not pressed at the trial for the reason that this is not a dispute between riparian owners on opposite banks of the river. However, so far as the parties to this suit are concerned, it is admitted before us that land which emerges from the river will ordinarily appertain and belong to that village whose frontier it forms an accretion though title may of course be lost by adverse possession. There is really little difference bet. when this admission and the allegations in para. 6 of the plaint. The defendants second party also filed a short written statement in which they admitted that they were tenants on behalf of the defendants first party and they claimed that they had been unnecessarily impleaded in the suit and were entitled to their costs. They denied having reaped any crop which had been gown by the plaintiffs and defendants 3rd party, but they pleaded that on the contrary, the latter had on 12th October 1926 reaped and appropriated the crop which they themselves had sown and for which they intended to institute a suit. The Court below had dismissed the suit, finding that it was premature in respect to a portion of the land and that it was barred by the principle of res judicata in respect to the other portion. As regards defendants 2nd party, the Court found that they had been wrongly impleaded.

7. Defendants 1st party and defendants 2nd party are separately represented by counsel in this Court, but learned Counsel for the plaintiffs-appellant has stated before us that he exempts defendants 2nd party from the appeal. A preliminary objection is taken that the appeal having abated against certain respondents, it must be deemed to have abated in toto and is therefore incompetent as against the remaining respondents. It is admitted that respondent 2 Khederu, respondent 7 Samaroo, respondent 8 Bakkas, respondent 9, Charu, respondent 12 Bhagwati Prasad, respondent 22 Mt. Karamdani and respondent 33 Thakur died more then six months ago and no steps were taken to have their legal representatives brought on the record. Mt. Karamdani and Bhagwati Prasad belong to defendants 3rd party and we will first consider their case. Under an order dated 21st January 1929, Mt. Karamdani was removed from the array of defendants and was arrayed as a plaintiff. She did not however join in the appeal. It is contended on behalf of the defendant-respondent that the appeal must fail because it is impossible to differ, antiate the interests of Mt. Karamdani and Bhagwati Prasad from the interests of the surviving plaintiffs and that if this appeal is heard on merits and succeeds, there will be two contrary and inconsistent decrees on the record. This is to say, it will be declared by this Court that the plaintiffs-appellants are proprietors of the land in suit and that it appertains to Harbanspur, whereas the lower Court's decree to the effect that Mt. Karamdani and Bhagwati Prasad are not proprietors of this land and that it appertains to Kharakpur will also stand; and as these two persons and the plaintiffs-appellants are all members of the same coparcenary body and their interests are joint, the result will be an absurdity. We have been referred by counsel to certain authorities, but most of them are distinguish, able in some respect or other from the case with which we are dealing. We will proceed briefly to consider them, and also certain other authorities which are more in point.

8. In Mainndra Chandra Nandi v. Bhagabati Debi (1926) 13 A.I.R. Cal. 335 a defendant filed a second appeal in the High Court and he impleaded the plaintiffs and other defendants as respondents to the appeal. During the pendency of the appeal one of the plaintiffs died and the appeal abated as against him. The suit had been brought jointly by the plaintiffs for possession of land and it was decreed by the lower Appellate Court in their favour, there being no specification of their separate interests. It was held that the appeal was incompetent as against all the plaintiffs. The Court observed that the test to be applied is whether the suit as framed could proceed in the absence of one of the plaintiffs or whether, if the plaintiffs were appellants the appeal could proceed in the absence of one of the plaintiffs either as appellant or as respondent. The next case from Calcutta is Naimuddin Biswas v. Maniruddin Laskar : AIR1928Cal184 . The tenants of a certain holding sued, their landlords under a certain section of the Bengal Tenancy Act for a declaration that the rent was Rs. 7 and not Rs. 10 as recorded. The suit was decreed. The defendants appealed, but before the appeal could be heard one of them died and his heirs were not brought on the record and so the appeal abated so far as he was concerned. It was held that the appeal was incompetent as it could not proceed in the absence of a necessary party. The Court observed:.I cannot imagine that the Court can vary or reverse a decree in favour of a person who is dead and no longer has any existence. Sol far as defendant 4 is concerned he is no longer a defendant for he is dead. Possibly he has some heirs, but they are not on the record and so ace obviously not parties. Order 41, Rule 4 can have no application therefore. A dead person is no longer a party to a suit in any capacity.

9. In Krishnabandhu Pal v. Brajendra Kumar Shaha : AIR1932Cal134 several tenants sued under the Bengal Tenancy Act for a declaration of status. Their suit was dismissed by the trial Court. During the pendency of an appeal in the Court of the Sub. ordinate Judge two of the plaintiffs-appellant died and their heirs were not brought on the record. It was objected in the High Court that the appeal had abated in toto, but the Court held that it had not abated. This view was based upon a consideration of Order 41, Rule 4, Civil P.C., and also on the fact that under the Bengal Tenancy Act it was competent for one tenant alone to institute such a suit.

10. In Darshan Das v. Bikramajit Rai : AIR1926All128 , a certain person sued a number of defendants for avcidance of a deed of gift. The trial Court dismissed the suit, but it was decreed in appeal by the District Judge. During the pendency of the appeal before the District Judge one of the defendants-respondent - a man named Gobind Rai - died and no application was made for substitution of his heirs; nor was the attention of the District Judge drawn to the fact of his death. Gobind Rai and Bikramajit were joint owners of a half share in the properties and their separate interests were not specified. It was held that the appeal had abated in respect to that half share. At p. 129 the Court observed:

The result of allowing an appeal against Bikramajit and at the same time leaving the decree in favour of Gobind Rai intact would be to allow two contradictory decrees to remain with regard to the same property. This, In our opinion, should not be allowed.

11. In Sheo Chand Misra v. Sita Ram : AIR1927All331 , the plaintiff sued for redemption of a mortgage against two defendants. The trial Court decreed the suit, but on appeal the suit was dis. missed. There was a second appeal to this Court and during its pendency one of the two defendants-respondent died and no steps were taken to have his heirs substituted. It was held by a learned Judge of this Court that the appeal had abated as a whole. It was held in this case, as in many others, that the test to determine whether or not the failure to bring upon the record the heirs of one of several respondents, who is dead, has the effect of causing an abatement of the entire appeal, is as to whether or not the appeal can be decided without, as a result of that decision, bringing into existence two decrees contrary to each other.

12. The next case to which we have bees referred is from Patna, Pheku Tewarl v. Bhagwat Lal (1935) 22 A.I.R. Pat. 4. There were three plaintiffs and they sued for exclusive possession of a certain plot. The suit was dismissed by the trial Courts and there was an appeal by the plaintiffs. Daring the pendency of the appeal one of the plaintiffs died and the appeal abated so far as he was concerned. It was held by the High Court at Patna that the appeal had abated as a whole, inasmuch as the effect of allowing the appeal would have been to bring into existence two contrary decisions. The case in Darshan Das v. Bikramajit Rai : AIR1926All128 of which mention hast already been made, and also another Patna case, Kesho Prasad Singh v. Muhammad (1931) 18 A.I.R. Lah. 43 were referred to in that judgment.

13. Then there is a Lahore case, Saru Khan v. Jan Muhammad (1928) 15 A.I.R. Lah. 43. There three plaintiffs sued for possession of certain land as occupancy tenants. The suit was decreed by the trial Court, but it was dismissed in first appeal by the District Judge. There was a second appeal to the High Court by one only of the plaintiffs. A preliminary objection was taken that it was not competent to one plaintiff to appeal without impleading the others. The Court observed:

In reply (to the objection) reliance is placed on Order 41, Rule 4 and it is argued that Saru Khan can appeal on behalf of the other co-plaintiffs without joining them as parties to the appeal. That Rule however authorizes one of the plaintiffs to as action, in which other co-plaintiffs are also interested, to appeal for the benefit of the latter only if they are made parties to the appeal. The proposition is too obvious to require discussion.

14. Now in Maha Mangal Ral v. Kishun Kandu : AIR1927All311 it was held by a learned Judge of this Court that when the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants and when only some and not all, the plaintiffs or defendants have appealed against the decree of the trial Court, the power vested in an Appellate Court by Order 41, Rule 4 to reverse or vary the decree appealed from in favour of all the plaintiffs or all the defendants is not restricted to cases in which the plaintiffs or defendants who have not appealed were made parties to the appeal; that power can be exercised by the trial Court even if the plaintiffs or the defendants who have not appealed are not made parties to the appeal.

15. In Satulal Bhattacharjee v. Asiraddi Shelkh : AIR1934Cal703 certain per. sons were sued for a declaration of title in respect to a property and for possession thereof. The trial Court decreed the suit in part; and dismissed it in part, but on appeal the lower Appellate Court decreed the suit in full. There was a second appeal by the defendants to the High Court and during its pendency, one of the two defendants - who were brothers - died and his heirs were not substituted and so the appeal abated so far as he was concerned. It was held that as the suit was resisted by the defendants on a common ground, Order 41, Rule 4, Civil P.C. enabled the surviving defendant to maintain the appeal from the whole decree and it was competent to the Appellate Court to reverse or vary the decree in favour of all the plaintiffs or all the defendants as the case might be. The learned Judges observed:

It is contended that the rule only provides for a case where the appeal has been preferred by one of the defendants, in which case, although the other defendant had not joined in the appeal he is entitled to get the benefit of the judgment. We are of opinion that that would be putting a limited construction on the provisions of Order 41, Rule 4.

16. A similar view was taken by the Madras High Court in Subbaraya Mudaliar v. Kandasamy Mudaly (1923) 10 A.I.R. Mad. 58 and in Chenchuramayya v. Venkatasubbauyya Chetty : AIR1933Mad655 . In the latter case, the learned Judges in discussing Order 41, Rule 4 observed:

If some among the defendants could appeal and the Court could upon such appeal reverse or vary the decree as a whole it seems to follow that, where all the defendants appeal and the appeal of one or more abates by reason of death, the Court should be able to exercise similar powers. If this were not so, either the whole appeal must abate or the decree in its final form must be composed of incompatible elements, each a highly undesirable consequence.

17. Further on, after discussing various authorities, they say:

We think therefore that judicial opinion is fairly agreed upon this point and that the absence of a legal representative on the record does not Incapacitate us from dealing with the appeal as a whole.

18. We are in agreement with the view expressed in the last mentioned four cases. Where the suit has proceeded on a common ground, as contemplated by Order 41, Rule 4, Civil P.C. and the Court is asked to apply that Rule, we can see no essential difference between (1) the case where some only of the plaintiffs or defendants, as the case may be, have appealed without impleading the others, (2) the case where all the plaintiffs or defendants have appealed and one of them dies and his heirs are not substituted and (3) the case, as here, where some only of the plaintiffs have appealed and have impleaded the non-appealing plaintiffs and the pro forma defendants having the same interests as the plaintiffs and one of the non-appealing plaintiffs or pro forma defendants dies and his heirs are not brought on the record. In the case before us it is admitted that the suit proceeded on a ground common to all the plaintiffs within the meaning of Order 41, Rule 4. If therefore the plaintiffs-appellant had appealed without impleading Mt. Karamdani and Bhagwati Prasad and if the Court, being aware of the absence of the two deceased respondents, consciously decided to apply Order 41, Rule 4., it would have been competent to it to reverse the decree of the trial Court in favour of the plaintiffs and also in favour of defendants third party for whom relief was prayed and whose interests were identical with those of the plaintiffs. Now according to Order 22, Rule 11, the word 'appellant' must be substituted for 'plaintiff ', the word 'respondent' for 'defendant' and the word 'appeal' for 'suit' in Rules 3 and 4 of that Order. Since none of the appellants have died, it is obvious that Rule 4 and not Rule 3 is applicable. It is also obvious that on the death of these two respondents, the right to appeal survived against the surviving respondents alone, i.e. against those respondents against whom any relief was claimed. No relief of any kind was claimed against Mt. Karamdani or Bhagwati Prasad. Upon a consideration of the whole matter, we are of opinion that this appeal is not incompetent on account of the fact that the heirs and representatives of plaintiff, respondent Mt. Karamdani and defendant, respondent Bhagwati Prasad,(of defendants third party), were not brought on the record.

19. As regards the other five respondents who have died, four of them belong to defendants second party and are tenants of defendants first party and one belongs to defendants fourth party who are tenants of the plaintiffs. They were necessary parties to the suit and we are of opinion that the fact of their heirs not having been brought on to the record cannot render this appeal incompetent. This disposes of the preliminary objection and it now remains to consider the merits of the appeal. There is a rough sketch map in the judgment at p. 67 showing the land in suit. The lower Court finds that this land 'is the part of the village Harbanspur,' but it finds as regards the portion marked CED that the suit is barred by the principle of res judicata by reason of the decree in Suit No. 103 of 1896. As regards the other portion, which is marked ABCD, the learned Judge finds that the cosharers of Sharfuddinpur acquired title by 'wrongful possession' from 1883 or 1884 upto 1896, that the defendant first party has not acquired title by adverse possession as against the cosharers of Sharfuddinpur, that the plaintiffs and the defendants third party were in possession for a number of years until dispossessed by defendant first party, but that the suit is premature in respect to this portion of the land in suit by reason of the fact that the title of the plaintiffs and defendants third party had not matured as against the true owners, i.e. the cosharers of Sharfuddinpur, who alone were competent to dispossess the defendant first party.

20. In respect to ABCD, the learned Judge at p. 61 says that it (as also the rest of the land in suit) 'is part of the village Harbanspur and it is so for the last seven or sight years'; at p. 68 he says 'the plaintiffs' possession shall be considered for eight or nine years at most'; at p. 69 he 'infars' that the suit would be premature 'even if the plaintiffs' possession is proved for eight or nine years'; and at p. 70 ha says that 'the plaintiffs were in continuous possession of the land in suit for five or six years and after that defendant 1 got possession of the land in suit and it did not ripen into 12 years' possession.' This finding - if finding it can be called - as regards the possession of the plaintiffs is very unsatisfactory.

21. In the plaint it was alleged that in 1331 F., i.e. in 1924, the land emerged and was recorded as belonging to Harbanspur, but learned Counsel for the par. ties have not been able to show us any such record. It was further stated in the plaint that the land became culturable in 1334 1., i.e. in 1927, and a crop was sown by the plaintiffs and defendants third and fourth party in the plots in lists A and B appended to the plaint, but it was out and appropriated by the defendants first and second party on 21st September 1927. It was then alleged that defendants first and second party had wrongly had these plots shown as in their cultivation and that defendant first party had wrongly had the unculturable plots in list C shown as appertaining to Kharakpur. Muhammad Amin, one of the plaintiffs, says that the plaintiffs first sowed paddy crop, then a rabi crop and then another paddy crop; and evidence to the same effect is given by Rajbali patwari. It appears however from the plaint that the application by defendant 1 under Section 145, Criminal P.C. was presented on 3rd January 1927 and in the judgment relating to those proceedings, which is dated 3rd November 1927 and is printed at p. 155, reference is made to a report of the Tahsildar of 31st October 1926 which apparently supported the allegation of a likelihood of a breach of peace. Prima facie it is somewhat difficult to understand how, if this evidence is believed, the plaintiffs and defendants third and fourth party can have sown three crops on the land which is said to have become culturable in 1927. Before we can proceed satisfactorily to deter, mine the question of possession we must have a clear and definite finding by the lower Court, after proper consideration has been given to all relevant matters, as regards the possession and dispossession of the plaintiffs and defendants third party.

22. We are in the same difficulty as regards the portion of land marked CED, i.e. the plots shown in list No. 1 of the written statement, as regards which the Court below finds that the suit is barred by the principle of res judicata. A commissioner, Mr. Mazhar Husain, was appointed by the Court and he submitted a report and a map on 8th May 1930. The learned Judge at p. 65 observes as follows:

In the map of commissioner line G.H.I.J. marked by me on Ex. FF on 23rd March 1981, la not shown in spite of the Court's order to this effect and hence I put the map Ex. FF on the commissioner's map (Both are prepared on the same scale). I put the western line of the map Ex. FF on the western line of the commissioner's map, then arrow 5 in the commissioner's map is on the place where the line G.H.I.J.K. should be drawn in commissioner's map and hence the line arrow 5 in the commissioner's map is the western boundary of the village Kharakpur. It is also western boundary of Kharakpur in Settlement of 1324 Fasli and henca the plots on the 'east of arrow 5 were the plots about which the plaintiffs' ancestors filed the Suit No. 103 of 1896 and the plaintiffs' suit about the land on the east of the line arrow 5 is barred by res judicata. In other words the plaintiffs' suit for the plots or parts of the plots in suit in the present case which by above mentioned tracing are found to be the cast of the western line of the land marked rod in Ex. FF will be deemed to be covered by res judicata and hence will be deemed to belong to the defendants.

23. We find it difficult to comprehend these observations and learned Counsel have been unable to supply any illumination. Ex. FF is a certified copy of a map the original of which was apparently filed by the plaintiffs or by some one on their behalf in the 1896 suit; it was not appended to the plaint of that suit. The record of that suit is not before us and we do not know in what circumstances or by whom or with what precise object the map was prepared. There is no reference

24. It is undoubtedly a matter of consider, able difficulty to ascertain with any exactitude which, if any, of the plots in suit were the subject of litigation in 1896. The onus however was on the defendant-res, pondent and we note that in para. 6 of his written statement he says that the boundaries of mauza Harbanspur and Kharakpur were demarcated in connexion with that case (i.e. Suit No. 103 of 1896) and according to that also the lands in list No. 1 were shown as appertaining to Mauza Kharakpur. This refers to the demarcation proceedings which were taken in 1907 and the map which was then prepared and we think that this suggests a possible basis on which the question of res judicata may be determined. We are of opinion that further investigation is necessary for the purpose of proving or disproving the identity of the plots in list No. 1 of the written statement (i.e. the area shown as C.E.D in the map at p. 67) with the land which was the subject of litigation in 1896. There are certain other matters in respect to which the judgment of the Court below is not very satisfactory and upon which we require clear, definite and well-considered findings. We accordingly remand the suit to the lower Court under Order 41, Rule 25, Civil P.C., for deter, mination of the following issues:

(1) Whether the area claimed or any portion of it is within the boundaries of Harbanspur? (2) Whether any of the plots shown in list No. 1 of the written statement are shown as belonging to Kharakpur in the demarcation map of 1907? (3) Whether any portion of the area claimed has been under water since 1907? If so, for what period and when did it last emerge? (4) Whether the plaintiffs have been in possession since 1907? If so, for what period or periods? Were they dispossessed by defendant first party; and if so, when? (5) What was the nature, extent and effect of the possession of the co-sharers of Sharfuddinpur in respect to any of the plots in suit? If title by adverse possession was acquired, when did it mature? (6) Whether defendant first party has acquired title by adverse possession in respect to any portion of the land which may be found not to appertain to Kharakpur?

25. It is true that in respect to one at least of these matters there is a finding of some sort or other by the Court below, but for a proper decision of this appeal we think it advisable, since the case has to be remanded, that all the above issues be more fully investigated and thrashed out. The parties will be at liberty to adduce such additional evidence as may be relevant to those issues, and the findings should be submitted within three months ; and thereafter the usual 10 days will be allowed for objections.


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