S.P. Mohapatra, J.
1. This second appeal has been filed by defendant No. 2 against the appellate judgment of Sri R.C. Misra, District Judge of Sambalpur, confirming a decision of the Additional Subordinate Judge, arising out of a suit brought by plaintiff Bishnu Majhi for declaration of his title and recovery of possession in respect of 30.11 acres of lands described in the schedule attached to the plaint which were originally Sir lands within the Boarasambar zamindary.
Defendant No. 1 was the zamindar and defendant No. 2 claims by virtue of a lease granted in his favour by the zamindar. The plaintiff's case is that the disputed Sir lands along with other substantial acreage appertain to the Thiccadari village which was in possession of the ancestors of the plaintiffs for more than 100 years. Krishna, the great-grandfather of the present plaintiff acquired the Thiccadari interest and was granted the protection certificate in the year 1891 after an enquiry was made by Mr. Priest who found Krishna's possession for more than 20 years.
Thereafter the Thiccadari interest along with Sir lands had descended from generation to generation. Krishna had three sons, Bhagirathi, Dinababdhu and Damarudhar. Bhagirathi being the eldest son of Krishna was recognised as the protected Thiccadar. Bhagirathi too had three sons, Dhanardan, Ramchandra and Bharat. After the death of Bhagirathi, Danardan became the protected Thiccadar.
But regarding the Sir lands, the plaintiff's allegations are that they are joint family properties and considerable improvements had been made to the Sir lands out of the assets of the joint family funds. According to the family arrangement, the Sir lands were allotted to the separate possession between Bhagirathi, Dinabandhu and Damarudhar, and in the year 1928. Bhagirathi also divided the Sir lands amongst his three sons Dinabandhu, Ramachandra and Bharat.
The present disputed lands were in exclusive possession of Ramachandra on the basis of the family arrangement and after Ramachandra the present plaintiff is in possession.
2. It is to be noted, Dinabhandhu had two sons Kartik and Sarduk. For non-payment of Thiccadari jama the first defendant obtained a decree in Title suit No. 8 of 1934 against the protected Thiccadar Danardan for ejectment of the Thiccadari interest and In Execution Case No. 294 of 1934, the first defendant ejected the thiccadar and settled the lands with defendant No. 2 who dispossessed the present plaintiff's father in 1935. The suit therefore was brought on 9-5-1946 for the aforesaid reliefs.
3. The defendants contend that the village had never been permanently settled with Krishna and was never the joint family property of the family of Krishna; in execution of the decree for ejectment the landlord was perfectly entitled to be in Knas possession of the Sir lands; the lessee therefore had matured his rights on the basis of the lease and the present plaintiff has no right to eject any of the defendants.
4. There was a good deal of controversy in the Courts below on the question whether the Thiccadari village was permanently settled or temporarily settled. The lower appellate Court rightly held that the question is immaterial. Both the Courts below have concurrently found that the different co-sharers were in separate possession of the Sir lands by amicable arrangement, and further that the plaintiff has been in possession of the suit lands since the time of his father as asserted by him.
5. But the more important question which demands judicial determination is whether the Thiccadari village and the Sir lands appertaining thereto are the joint family properties or not. Here also the Courts below have concurrently found that in fact they are joint family properties. The fact remains that nearly more than 100 years ago the properties were acquired.
The oldest evidence that is on record is the statement of Krishna recorded by Mr. Priest, who was commissioned for the purpose of an enquiry as to whether the protection certificate was to be granted in favour of Krishna On the basis that his possession was more than 20 years. Krishna said that in fact the village was acquired by his father. There is no reason why the statement of Krishna as to the nature of his rights in the property at the time should not be accepted.
Mr. Mohapatra, appearing on behalf of the appellant, contends that it is contrary to the very case of the plaintiff in his plaint and in his deposition who says that the property was acquired by Krishna. The plaintiff is a boy of 19 and it is not possible to expect from such a boy to trace out the exact origin of the village in question. The statement of Krishna in the year 1888 is by far more acceptable than the statement of the present plaintiff.
The Courts below also were rightly impressed with another feature to come to the finding that it is a joint family property. This is the settlement of record of rights of Hernia settlement of the year 1924-25. There different co-sharers have been shown to be in separate possession of several plots of Sir lands. If really the property was not joint family property it would not be usually expected that the other members of the family should be separately noted to be in possession.
Mr. Mohapatra contends that they might have got it by way of maintenance, taut such a note is conspicuously absent. In our view, the Courts below were perfectly justified in coming to the conclusion that the properties in dispute were joint family properties. As we have found the property was acquired by the father of Krishna and when Krishna got it, it was ancestral property and thereafter it became the property of the joint family.
6. Mr. Mohapatra, however, places strong reliance on the provisions of Section 65-A (4) of the Central Provinces Land Revenue Act in support of his contention that on the granting of the protection certificate it becomes impartible, the other members of the family cannot have any interest whatsoever as it is descendible to the eldest member only who alone under the law is to be recognised as the Thekadar. The relevant portion of Section 65-A (4) runs as follows:
'(4) X X X x (a) the tenure shall be heritable, but not transferable by sale, gift, mortgage or dower: it shall not be saleable in execution of any decree, nor shall any decree be passed for the sale thereof; and save in so far as any arrangements to the contrary are in force at the time of the declaration, it shall not be partitioned and shall devolve on the member only of Thekadar's family:'
Mr. Mohapatra's further contention is that the only saving to this clause is 'any arrangement previous to the granting of the protection certificate' otherwise the eldest member becomes the full owner of the property and in respect of it other members cannot claim any rights whatsoever. In the present case, Mr. Mohapatra contends, as the arrangement according to the very case of the plaintiff was in 1928, the suit must be dismissed on a plain reading of the provisions of Section 65-A (4).
The matter is not so simple to dispose of the point. The controversy has been the subject-matter of judicial pronouncement in a long series of cases of the Nagpur High Court and in quite a number of cases of our High Court.
7. We will first refer to a decision of our High Court reported in Tirtha Naik v. Lal Sadananda Singh, ILR (1949) Cut 139: (AIR 1952 Orissa 99) (A). This is a decision of Bay C. J., and Panigrahi J. The decision has been followed consistently in many other subsequent cases coming up before our Court. The main judgment was delivered by Panigrahi J., but Ray C. J., laid down nine propositions of law applicable to cases of this nature of which the first, second, third and eighth will be relevant for our purpose. They are as follows:
'(i) That the Thikadary leases, either permanent or temporary, but renewed or renewable from time to time are, like any other property, capable of being possessed by a coparcenary:
(ii) That the joint family estate in such leases can grow, either if they are acquired with the joint family funds, or with joint family labour, or is allowed to be treated as joint family Property by the acquirer:
(iii) The declaration of protected status does not effect any change in its character, so as to debar acquisition of joint family rights in it or to divest any pre-existing or subsisting right in them enuring to the benefit of the members of the joint family:
X X X X X (viii) It is a mistaken notion as well that the Sir and Bhogra lands also revert to the zamindar, or in other words to the lessor, on forfeiture of the Thikadary tenure, as, according to the Sambalpur tenancy law, simultaneously with the forfeiture of the tenure, the right of occupancy grows in such lands in favour of the tenure-holder.'
The eighth proposition quoted above directly arises from the provisions of Section 45 of the Central Provinces Tenancy Act which run as follows:
'45. (1) Notwithstanding any agreement to the contrary and save where sanction has been given under Sub-section (2), a proprietor who, after the commencement of this Act, temporarily or permanently loses (whether under decree or order of a Civil Court or a Revenue Officer or otherwise) or transfers his right to occupy sir land as a proprietor, shall at the date of such loss or transfer become an occupancy tenant of that sir land and the rent payable by him as such shall be the sum determined at the current settlement as the rental value of such land, unless and until, on the application of either landlord or tenant, the rent is fixed by a Revenue Officer.'
The other propositions quoted above have been summarised as arising from several decisions of the Nagpur High Court. Panigrahi J., however in his very elaborate judgment has reviewed several decisions in observing that if the family funds were utilised for the improvement of the property then as between members of the family of the lessee, it was joint property: the effect of the granting of a protected status was not to do away with the right of the other coparceners, which remains dormant ready to spring into existence when the protection is removed.
So long as the protection was there, the other members of the family could not assert their title to the estate. When that protection was removed, the property became ordinary coparcenary property. In our view, as soon as the decree for ejectment against the Thikadar was executed, the protected Thikadar lost all his rights in respect of the thikadari interest and on that the coparcenary character of the Sir lands sprang up and the other members of the family who had interest in the Sir lands could enforce their rights in a suit like this in spite of a decree for ejectment against the Thikadar.
8. A similar position came up for discussion in another decision of this Court to which I was a party reported in Purna Chandra Sahu v. Chamra Bariha, 20 Cut LT 142 (B). That was a suit for recovery of possession of certain Sir lands attached to a Thika tenure. Plaintiff No. 1 was the son of ex-Thikadar Raghu Bariha who was arrayed as defendant No. 3.
Plaintiff No. 2 was his uncle belonging to the junior branch of the family which had a common ancestor. Defendant No. 2 was the zamindar of Borasambar who had filed a suit for arrears of rent and obtained a decree in execution of which he took delivery of possession of the Sir lands. Defendant No. 1 was the lessee. The facts are almost similar to our present case. Paragraph 4 of the report is worth being quoted here:
'The next question is whether in execution of this rent decree, the family members could be ejected from their possession. The Thikadar could certainly have been ejected from, his office, but mere non-payment of rent would not suffice to Justify ejectment from Sir lands. On the other hand, on his being ejected from the office of Thikadar he becomes a tenant of the lands with occupancy rights.
This has been discussed at length in Tirtha v. Lal Sadananda Singh (A), by a bench of this Court of which I was a member. The Court below was right in relying on that decision and arriving at the conclusion that though the tenure lapsed to the Zamindar the Sir lands did not revert to him. The plaintiffs must accordingly be held not to have lost their right to remain in possession of the lands.'
9. We may last of all refer to another decision of our Court reported in Damaru Udia v. Deba Berhia, ILR (1954) Cut 578 (C). The case was decided by Panigrahi C. J. & Misra J. Misra, J. delivered the Judgment. The facts of that case also are to a great extent similar to those of the present one. Their Lordships held:
The scheme of the Sambalpur Land Revenue Act shows that even in the case of a default in payment of revenue, although the penalties provided for in Section 94 of the Central Provinces Land Revenue Act may be imposed, the defaulter shall not be deprived of the possession mentioned in Clauses (c), (d) and (e) of the said section. But every such defaulter shall, while such process is being enforced, be entitled to remain in possession and be liable to pay such rents as if he is an occupancy tenant, as may be fixed by the Deputy Commissioner. We find also a similar provision in Section 45 of the Central Provinces Tenancy Act.'
On a consideration of the above decisions and on the basis of the finding that it was a joint family property the Courts below rightly decreed the plaintiff's suit
10. Mr. Mohapatra however has taken up another point that the present suit must fail on account of its peculiar frame. The plaintiff here comes for recovery of possession in respect of some specific plots. Even if the property may be taken to be the joint family property, the plaintiff is entitled only to joint possession as out of the total acreage of 190 and odd acres only 80.11 acres are the subject-matter of the suit. This contention of Mr. Mohapatra is sufficiently met by the findings of the lower appellate Court confirming the finding of the trial Court. The findings of the lower appellate Court are as follows:
'In circumstances the evidence of P. Ws. 1 and 2 that P. W. 1 has been in possession of the suit lands is difficult to be rejected, although it is no conclusive proof that those lands were acquired by him or his father at the subsequent family partition. Justice Manohar Lal also in the above case was inclined to think that the co-sharers were in separate possession of the lands by some amicable arrangement.
In a line with that I would also hold that the plaintiff has been in possession of the suit lands since the time of his father as asserted by him by some such arrangement.'
When the plaintiff was in exclusive possession of the lands in dispute in which he had title, he can maintain the suit against the defendants who are mere trespassers.
11. It may be noted here Dinabandhu's two sons had brought a similar suit previously which ultimately came up in First Appeal no. 15 of 1939 (Pat) (D), and the suit was dismissed by a judgment of the Patna High Court, the Bench consisting of Fazl Ali, C. J. and Manohar Lal, J. The decision was dated 6-5-1944. With great respect we must observe that the decision is not binding on us. Neither it is binding on the present plaintiff who was not a party to the previous suit. We have preferred to follow the above mentioned three decisions of our Court.
12. Mr. Mohapatra takes the last point of limitation relying on the provisions of Section 94 of the Central Provinces Tenancy Act. The point of limitation under this special statute was never taken either in the written statement or in any of the Courts below. It is significant to note that it was not even taken in the grounds of appeal in this second appeal.
Mr. Mohapatra however feeling his difficulty fairly concedes the position that the point of limitation based upon the provisions of a special statute must be taken specially in the written statement before it can be agitated in Court. We do not allow such a point to be raised for the first time before us.
13. In conclusion, therefore, the appeal fails and is dismissed with cost.
G.C. Das, J.
14. I agree.