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BhagwandIn Vs. Mata Dayal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.670
AppellantBhagwandin
RespondentMata Dayal and ors.
Excerpt:
.....that the auction-purchaser has been in adverse possession, so far as this share is concerned, since the 20th of october 1897. the plaintiff is himself a co-sharer, apparently of a share of one-anna in the same undivided patti and has been receiving and enjoying the profits of this share. when i passed my remand order i was clearly of opinion that the plaintiff, having been put to proof of his possession within limitation by the fourth issue as framed in the court of first instance and having nowhere pleaded in first or second appeal that he had been in any way misled by the frame of the issues, or that any evidence which he might otherwise have produced had been kept back by him in consequence of the form in which the issues were framed, had no right to produce further evidence upon my..........or try an issue or to determine any question of fact essential to the right determination of the suit, an issue remitted by the appellate court will ordinarily require to be tried on fresh evidence. in the present case, an issue had been framed which sufficiently covered the ground and my only object was to obtain from the lower appellate court a finding upon a narrower and more specific issue after a re-consideration, of the whole of somewhat complicated evidence in the case with special reference to the pleas urged on behalf of the plaintiff. i think that the words 'additional evidence required' in order xli, rule 25, aforesaid are at least sufficient to leave the appellate court discretion not to direct additional evidence to be taken if it is of opinion that it is not required......
Judgment:

Piggott, J.

1. The essential facts of this case are given in my remand order, dated the 26th of April 1912. I may so far recapitulate them as to point out that a share of 101/2 pies in an undivided patti of 4 annas was mortgaged by one Musammat Jitan, the recorded owner of the same and was eventually brought to sale under a mortgage decree and purchased by the ancestor of Debi Prasad, defendant No, 5, on the 20th of October 1897. The twelfth paragraph of the plaint distinctly admits that the auction-purchaser has been in adverse possession, so far as this share is concerned, since the 20th of October 1897. The plaintiff is himself a co-sharer, apparently of a share of one-anna in the same undivided patti and has been receiving and enjoying the profits of this share. He claims that he is entitled to the same rateable proportion in the share of a 10 1/2 pies put up to sale as the property of Musammat Jitan and that his cause of action for a suit to recover possession of the said share accrued to him on the 20th of August 1897, when he was dispossessed by reason of the auction sale. Amongst other pleas raised in defence, was the plea that the plaintiff had never been in possession within limitation. This point was decided against the plaintiff by both the Courts below and the plaintiff came to this Court in second appeal. There had been in the Court of first instance a specific issue in the following terms: 'Whether the plaintiff has been in possession of the property in suit within twelve years of the institution of the suit or is the claim time-barred?' When the case was argued before me me on the 26 th of April 1912, it seemed to me that the Courts below, and more particularly the lower Appellate Court, had not considered the question of limitation in such a manner as to do justice to the plaintiff's case. The suit was instituted on the 12th of October 1909, and the mere adverse possession of the auction-purchaser from the 20th of October 1897 onwards, was not sufficient to put the case outside limitation. Moreover, it seemed to me that the question had not been fully considered whether prior to the auction sale, the plaintiff might not have been in constructive possession of the share claimed by him, either as a member of a joint Hindu family or as one of a body of co-sharers receiving and enjoying the entire profits of the patti jointly in spite of the specification of shares recorded in the village papers. I, therefore, remitted an issue to the lower Appellate Court on this point. The record has now been returned with a finding against the appellant and to this finding objections have been filed by the said plaintiff-appellant. I do not think there is any force in the contention that the finding returned does not cover the whole grounds taken by the remanded issue. The finding is first of all, that, except as a member of a joint Hindu family, the plaintiff had made out no case for constructive possession on his part during the period covered by the remanded issue; and secondly, that the family was not joint during the period referred to. I do not think this finding can be contested on any of the grounds taken in the memorandum of objections unless there be force in the contention that the lower Appellate Court erred in not admitting evidence on the remanded issue. Now 1 am, perhaps, to a slight extent, to blame for the difficulty which has arisen on this point. When I passed my remand order I was clearly of opinion that the plaintiff, having been put to proof of his possession within limitation by the fourth issue as framed in the Court of first instance and having nowhere pleaded in first or second appeal that he had been in any way misled by the frame of the issues, or that any evidence which he might otherwise have produced had been kept back by him in consequence of the form in which the issues were framed, had no right to produce further evidence upon my order of remand. I framed my issue on this assumption but I was, perhaps, in error in not laying down explicitly that the issue was to be tried on the evidence already on the record. The lower Appellate Court has, however, carried out my intention by declining to admit additional evidence. It is contended, however, that by reason of the wording of Order XLI, Rule 25 of the Code of Civil Procedure, an Appellate Court remanding an issue under that rule is bound to direct additional evidence to be taken. I certainly think that the rule in question is framed on the assumption that where a Court has omitted to frame or try an issue or to determine any question of fact essential to the right determination of the suit, an issue remitted by the Appellate Court will ordinarily require to be tried on fresh evidence. In the present case, an issue had been framed which sufficiently covered the ground and my only object was to obtain from the lower Appellate Court a finding upon a narrower and more specific issue after a re-consideration, of the whole of somewhat complicated evidence in the case with special reference to the pleas urged on behalf of the plaintiff. I think that the words 'additional evidence required' in Order XLI, Rule 25, aforesaid are at least sufficient to leave the Appellate Court discretion not to direct additional evidence to be taken if it is of opinion that it is not required. There remains only one point in the case and that is a contention embodied in the plaintiff's memorandum of appeal to this Court which is more or less independent of the particular issue remitted by me in my former order. The plaintiff contends that as he has all along been a co-sharer in this undivided patti, it does not really Tie on him to prove possession within limitation but on the defendants to prove adverse possession based upon some definite assertion of adverse title. The plea was supported in argument by various rulings which either deal with the case of a recorded co-sharer claiming profits from a lambardar or otherwise appeared to me more or less distinguishable from the particular case before me. I think, however, that this particular question dogs not arise in this case. The frame of suit excludes it. The suit is in ejectment against the defendants who, according to the plaint, have been excluding the plaintiff from the enjoyment of profits since the 20th of October 1897. To such a suit, it is Article 142, and not Article 144, of the first Schedule to the Limitation Act ('X of 1908), which applies and the defendants are entitled to put the plaintiff to proof of his possession within limitation. 1 quite admit that such possession may be actual or constructive and the remanded issue was framed on this assumption. Accepting the finding on the remanded issue, I hold that this appeal must fail. It is accordingly dismissed with costs.


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