J.K. Misra, J.
1. This is an appeal by the defendant who was unsuccessful in both the courts below. The suit land measuring 1.02 acres is a part of holding No. 5/1 measuring 16 acres and odd. The said holding was the Bhogra land in the village Sunaripali in Bolangir district. One Danara Saref was the Thikadar of the said village tip to 1941, when he being removed from the Thekadarship the plaintiff was appointed the Thekadar of the said village and he continued to be the Thekadar till after the merger of the States. In 1952 there were Bhogra conversion proceedings taken up in Bolangir district, and the plaintiff surrendering all the Bhogra lands to the Government of Orissa, the said Bhogra lands were re-settled with him by the Government, as a rayat. According to the plaintiff's case, when he became the Thekadar in 1941, he came into possession of all the Bhogra fends including the disputed land and he continued in possession thereof until the surrender and the re-settlement of the Bhogra lands with him; that the defendant was setting up claim in respect of the disputed land and was trying to dispossess the plaintiff.
So, the plaintiffs suit was one for declaration of his title and for confirmation, or in the alternative, for recovery of possession. The defendant's case was that he purchased the disputed land from the previous Thekadar Danara Saraf near about 1920 for a consideration of Rs. 40/- in a plain paper document and that he continued in possession thereof during the period of Danara Saraf as the Thekadar and even thereafter right up to the date of the suit, irrespective of the fact that the plaintiff came in as the new Thekadar and as such into possession of other lands in the Bhogra holding. According to the defendant, he had acquired title to the disputed land by purchase or by adverse possession, and since the plaintiff had never come into possession thereof, the plaintiff's suit was barred by limitation.
2. The learned trial court did not accept the defendant's case of purchase of the disputed land by him from Danara Saraf, the previous Thekadar. It accepted the plaintiffs case that the plaintiff came into and remained in possession of the disputed land since he became the Thekadar, and with these findings the learned trial court passed a decreein favour of the plaintiff. The learned appellate Court believed the defendant's case of purchaseand also possession of the disputed land from 1920 upto the conversion of the Bhogra lands to raiyati: but since no title could be acquired, by purchase, to Bhogra lands under the Revenue Law of the State and since the total period of the defendant's possession was about 36 years, the learned appellate Court's finding was that no title by adverse possession had been acquired by the defendant against the Government who was the owner of the Bhogra lands, and so the plaintiff acquired a valid title from the Government who settled the disputed land with the plaintiff on raiyati basis.
3. The appellant's contention in the present appeal is that Article 149 of the Limitation Act which reserves a period of limitation of 60 years for any suit by or on behalf of the Government,does not avail to the plaintiff; and that the plaintiff's case was covered either by Article 142 or Article 144 of the Limitation Act, and in either case the defendant having been found to be in possession for more than 12 years adversely against the plaintiff himself as the Thekadar or against the Government, whatever it might be, the plaintiffs suit wasbarred by limitation. On the other hand, the contention on the respondent's side was that the learned appellate Court's finding about the defendant's purchase and possession throughout, contrary to thefinding of the learned trial court, was erroneous. So the aforesaid points arise for determination in the present appeal.
4. Coming to the second point first, about the alleged plain paper sale deed, said to have been burnt by house fire, the three witnesses concerned are D. Ws. 2, 4 and 8. D. W. 2 claims to be the scribe of the said sale deed. D. W. 4 is the son of Danara Saraf, the previous Thekadar, the executant of the sale deed, and D. W. 8 is the defendant himself. The learned trial court disbelieved the evidence of D.W. 2, the alleged scribe of the sale deed, since he could recite all details of the sale deed, said to have been executed 36 years back, though he could not state anything about the details of any other document written by him at subsequent periods. The learned appellate Court did not accept the learned trial court's view about the credibility of this witness, since the witness had not been shown to be otherwise interested in the defendant.
It is not humanly possible For one to recite thedetails of the document, written by him 36 years back, and there was no apparent justification for the learned appellate Court to overthrow the view of the learned trial court on the ground it did. About D. W. 4, the learned trial court did not rely on his evidence as he was hostile to the plaintiff, since his father had been displaced by the plaintiff from Thekadariship and since there were several litigations between the plaintiff and D. W. 4. Here again, the learned appellate court observed that the evidence of this witness should not have been brushed aside as interested, and it did not give any justifying reasons for taking a different view from the learned trial Court. D. W. 8, the defendant himself, was illiterate and, according to him, he had got the contents of the sale deed read out by oneNarahari Guru, said to be alive. The learned trial court discounted his evidence, because Narashari Guru himself was not examined.
The learned appellate Court took the view that examination of Narahari Guru was not necessary. Under Section 63 of the Evidence Act, 'Secondary evidence' means the oral accounts of the contents of a document given by some person who has himself seen it. A person unable to read a document cannot give secondary evidence of its contents, even though the contents of the document might have been read over to him (vide Ma Mi v. Kallander Ammal, AIR 1927 PC 15). Thus, the assessment of the oral evidence about the sale, as approached by the learned trial Court, was rejected by the learned appellate Court on insufficient or incorrect grounds. The learned trial Court also disbelieved the defendant's case of purchase, because the evidence led was inconsistent with the pleading.
In the pleading, it had been mentioned that Danara Saraf had given to the father of the defendant the suit land with some other lands for a consideration of Rs. 40/-. In the evidence stage, a case was sought to be made out that Danara Saraf had given the suit land under one deed for Rs. 40/-, and some other raiyati lands under another deed for Rs. 60/-. The learned appellate Court took the view that the pleading did not exclude the possibility of execution of another sale deed in respect of raiyati lands. The real inconsistency in the pleading and the evidence was that while according to the evidence the suit land alone had been gold for Rs. 40/-, in the pleading the said amount was mentioned to be the consideration for the suit land and other lands. The learned appellate Court overlooked this difference while criticising the view by the learned trial Court.
As to possession of the defendants, the learned appellate court mainly sought to rely on the theory of purchase if the purchase is not established, the only residual evidence about possession of the defendant is the oral evidence on the defendant's side plus three documents Exts. A, C, and D. The learned trial Court dealt with the oral evidence of possession thoroughly and it gave specific reasons for discarding the witnesses examined in that connection and for accepting the evidence on the plaintiff's side. The learned appellate Court observed, 'The evidence of the witnesses on either side is entitled to equal amount of weight ..... It is notpossible to find by half splitting scrutiny of the evidence of the witnesses as to who is speaking the truth and who is not. The learned Munsif has closely examined the evidence of the D. Ws. and has given some grounds for not relying on their evidence. Some of these grounds are that witnesses are unable to state about the cultivation operations and that their lands are at a distance of the suit lands. Though the P. Ws. evidence does not stand this test still the learned Munsif has relied on their evidence. I am unable to find that there is anything in the evidence of the witnesses to accept one set in preference to the other.'' The learned appellate court did not point out as to how the evidence on the plaintiff's side was subiect to same or similar infirmities as the evidence on the defendant's side. As a matter of fact,a perusal of the evidence of the P. Ws. does not disclose same infirmities as has been pointed out by the learned trial court about the evidence on the defendant's side.
Here again, the learned appellate Court has rejected the learned trial court's assessment of the oral evidence about possession on unjustifiable grounds. Much weight appears to have been put by the learned trial court on Ext, D, copy of the mistake list of Sunaripali village drawn up during the Patna State Settlement operation in 1936. In this mistake list, the defendant's father had been shown in the preparatory records to be in possession of the disputed land. The same mistake was later on corrected in course of the same settlement operation and the, disputed land was shown ultimately in the final settlement records to be in possession of Danara. Saraf. While the learned appellate Court sought to draw an inference from Ext. D that the defendant's father was in possession, it completely overlooked the importance of the final record of rights, in which the previous Thekadar was shown to- be in possession and to which record of rights the statutory presumption of correctness is attached by Section 65 of the Patna State Land Revenue Act. Ext. A is a report of the Patwari on 13-5-53 during the Bhogra conversion proceedings.
In this, the Patwari mentions that possession ot the suit land is in dispute between the present parties. So this document had no prima facie weight in favour of the appellant's possession. The other document, Ext. C, is an order dated 30-10-53 of the Officer concerned with the Bhogra conversion proceedings. That order is in respect of an objection petition filed by the appellant before him. In the said order, there is no categorical finding of the officer that the appellant was in possession of the suit land and he took the view that if the appellant was in possession, he was an encroacher entitled to no relief. So, neither Ext. A nor Ext. Clends any inference to the appellant's possession prior to 1953.
The plaintiff adduced oral evidence that afterhe was appointed Thekadar in 1941, he was givenpossession of all the Bhogra lands by the Staterevenue authorities. Since he did not produce anywrit of delivery, the learned appellate court sought to draw an adverse inference against him. The evidence of D. W. 4 lends support to the plaintiff's case of taking delivery of the Bhogra lands. When the plaintiff was appointed as the new Thekadar, the normal inference would be that he came into possession of all the Bhogra lands, irrespective of the fact that the defendant had been sold some of those Bhogra lands by the previous Thekadar, since such sale was not binding against the new Thekadar or against the State, and the new Thekadar could get possession of the Bhogra lands with the help of the State authorities, whose duty it was to give him delivery of possession.
Though the defendant's case was that he was all along paying rent in respect of the disputed land, to the Thekadar and he had procured rent receipts on that account, no such rent receipts were proved and there was no explanation on the appellant's side for non-production of such receipts; thoughthe learned trial court took notice of this fact, the learned appellate court has not taken this circumstance into consideration. In the aforesaid circumstances, the learned trial court was right in holding that the plaintiff was in possession of the disputed land throughout and the learned appellate Court was not justified in reversing that finding.
5. The aforesaid finding of fact is sufficient to dispose of the present appeal. But even assuming that the appellant bad purchased the disputed land in 1920 from the previous Thekadar and further assuming that he was in possession throughout against both the Thekadars till the resumption proceedings, could he defeat the plaintiff's title acquired by fresh settlement from the Government? According to Section 3 (ii) of Patna State Land Revenue Act, 'Bhogra land' means the land allotted by the Government of the State to a Thekadar in a village in lieu of remuneration for the management of such village. Under Sec, 100 of the said Act, the Thekadar is a village servant. Under Section 101 and other provisions of the Patna State Land Revenue Act, the most important incidents of the tenure of a Thekadar are as follows :
(1) it is heritable during the currency of a settlement (which is a period of 15 years) :
(2) it is not saleable in execution of a decree:
(3) it is not partible and devolves on one member only of the Thekadar's family, unless the Government directs otherwise.
(4) it is not transferable by sale, gift, mortgage, dower, lease or in any other way in whole or part.
(5) the Thekadar could be removed or dismissed by the State in certain circumstances, and the State is not bound in such cases to appoint any member of the Thekadar's family as the succeeding Thekadar. So, it is clear from the aforesaid incidents that the Bhogra land was going with and followed the office of the Thekadar and was an emolument of the office. It is not a case where the service was an obligation merely attached to the property, the property being a heritable one. In the case of property of the latter kind, title by adverse possession against a particular owner could enure against the succeeding owner, whereas the same could not be the position in the former case. Narasinhji v. Madhavsing, AIR 1942 Bom 138, on which reliance was sought to be put for the appellant, was a case of the former kind. The rights and liabilities of a Thekadar in the Bolangir State were more or less like those of a Karnam in the south. It was observed in Gourikantam v. Ramamurthy, AIR 1924 Mad 783, relying on Venkata Jagannada v. Veerabhadrayya, AIR 1922 PC 96: 'The lands comprising the emoluments of the Karnam office are attached to the office as such, so that even if a stranger to the family is appointed, the land goes with the appointment, that eligibility to the office is a personal matter, that the land goes with the office and is impartible, and the Government, in the act of enfranchisement severs the land from the office and allows the office holder for the time being to enfranchise it.....The distinction betweenthe enfranchisement of a service inam and that of a personal inam is that the latter is a mere release of the service obligation, release by the Crown of its reversionary interest, while the former is a resumption of the land by Government and a regrant of it to whomsoever Government pleases, although no doubt ordinarily the re-grant would be to the holder of the office at the time of the enfranchisement. The enfranchisement of a service inam and the issue of a title deed thereupon create a new title in the grantee, unless Government had at the time of resumption no right to resume. Adverse possession prior to resumption does not count against the new grantee.'
The aforesaid view was also approved in Rasa Koun-dan v. Janaki Animal, AIR 1951 Mad 333, in which it was held,
'In a suit for possession by the grantee against the defendant, the latter cannot rely on long possession which he held when the service tenure subsisted as the title, which was then extinguished under the law of limitation, is not the title on which the grantee can be said to seek to recover possession of the property. In order to succeed on the strength of a descriptive title, he must show that by adverse possession against the Government for sixty years prior to the enfranchisement and the grant of fresh title, he had acquired a prescriptive title to the service of inam lands,'
In the present case, apart from the question of surrender by the Thekadar and the subsequent settlement, by the Government, under Section 7(g) of the Orissa Merged States (Laws) Act, 1950, it was laid down,
'When land is held service tenure, either under the Ruler or any member of his family, the liability of the holder of such tenure to render service tor the use and occupation thereof shall cease, and he shall, on payment of such rent as may be assessed by the Provincial Government as fair and equitable, acquire occupancy right therein.'
So both under this law and by the re-settlement proceeding the plaintiff acquired a new title to the Bhogra holding as a tenant. Whatever might have been the nature of adverse possession by the appellant against the plaintiff, while the latter was the Thekadar, not amounting to acquisition of any title by adverse possession against the Government, it could not enure against the defendant (Plaintiff 1) in his new position. The nature of a title acquired by adverse possession is a title corresponding in quality and quantity to the old title, against which it is prescribed. What the appellant could at best prescribe by his long possession against the two Thekadars was the very right, which those Thekadars possessed in respect of the suit land and not beyond that.
If the Thekadari tenure was resumable by the Government, and was in fact resumed, the defendant had no subsisting right to the property against such resumption. The plaintiff acquired a new title as a result of such resumption, and the prior possession by the defendant could not be counted as adverse to the plaintiff. The plaintiffs suit could be covered by Article 144 of the Limitation Act and limitation against the plaintiff would count from the date the defendant's possession became adverse to the plaintiff, after the plaintiff had acquired his title. So even if the findings of the learned appellate Court regarding the plaintiff's possession were accepted, the appeal had no merit otherwise.
6. In the result the appeal is dismissed with costs.