Skip to content


Duana Moliko and anr. Vs. Bhagabat Biso and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 384 of 1964
Judge
Reported inAIR1967Ori110; 33(1967)CLT688; 1967CriLJ1036
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(6); Specific Relief Act, 1877 - Sections 9; Limitation Act, 1908 - Schedule - Article 47; Evidence Act, 1872 - Sections 3, 17 and 31
AppellantDuana Moliko and anr.
RespondentBhagabat Biso and ors.
Appellant AdvocateY.S.N. Murty, Adv.
Respondent AdvocateAsok Das and ;L. Rath, Advs.
DispositionAppeal dismissed
Cases ReferredGadadhar v. Karsan Basta Patel
Excerpt:
.....it was short of 12 years. the plaintiffs though have failed to establish their title, are entitled to a decree for the eviction of the defendants from the suit-property......therefore filed the present suit for declaration of title and for recovery of possession of the suit land from the defendants.3. the defence case in brief is that the land in question forms part of plot no. 13 of their village mandlapadar and it is not in village bisipada, the village of the plaintiffs. it forms part of a vast tract called rangukuti of which the defendants are in possession from time immemorial.4. both parties adduced oral evidence and produced certain documents in support of their respective cases. the courts below accepted the plaintiff's version that the suit land forms part of village bisipada and the plaintiffs were in possession of the same. they negatived the defence contention that, it forms part of plot no. 13 of village mandiapadar. they declared that the.....
Judgment:

R.K. Das, J.

1. This is a defendant's appeal arising out of a suit for declaration of title and recovery of possession.

2. The dispute relates to 1.73 acres of agricultural land locally known as Chabrikuti in village Bisipada in the district of Phulbani. It is the case of the plaintiffs that the land originally formed part of the bed of a tank which gradually silted up and was lying fallow for some time when the villagers of Bisipada including the plaintiffs and their ancestors reclaimed it and made it fit for cultivation. They claimed to have been in possession of the said land for the last thirty years, utilising its usufruct for their village deity Sri Ramachandra Mahaprabhu. The plaintiffs filed the suit both in their personal capacity as well as in their representative capacity representing the entire body of villagers of Bisipada, their case being that the defendants having no manner of title or possession were creating disturbance in the possession of the plaintiffs.

There was a proceeding under Section 145, Cr. P. C., in the Court of the Sub-divisional Magistrate, Phulbani, between the defendant-appellants and some others as the first party and the plaintiff-1 (respondent-1) along with others as the second party. The Magistrate by his order dated 9-12-53 declared possession in favour of the defendants who were to retain the same until they were evicted in due course of law. Plaintiffs have therefore filed the present suit for declaration of title and for recovery of possession of the suit land from the defendants.

3. The defence case in brief is that the land in question forms part of plot No. 13 of their village Mandlapadar and it is not in village Bisipada, the village of the plaintiffs. It forms part of a vast tract called Rangukuti of which the defendants are in possession from time immemorial.

4. Both parties adduced oral evidence and produced certain documents in support of their respective cases. The Courts below accepted the plaintiff's version that the suit land forms part of village Bisipada and the plaintiffs were in possession of the same. They negatived the defence contention that, it forms part of plot No. 13 of village Mandiapadar. They declared that the plaintiffs have their possessory title to the suit-land and directed recovery of posses-sion of the same. Hence the appeal by defendants.

5. Mr. Y.S.N. Murty, learned counsel for the appellants, mainly relied upon three documents, in support of the defence case. They are Exts. T.L.G. and M. Ext. T is a certified copy of the order dated 5-4-57 in Revenue Miscellaneous Assignment Case No. 70/56. This proceeding seems to have been started at the instance of one of the villagers of Mandiapadar the village of the defendants, for assignment of the said land to him. In course of that proceeding though the claim of the defendants was rejected the revenue officer held that the said land formed part of plot No. 13. This document was relied upon to show that the suit-land forms part of plot No. 13 of Mandiapadar village and does not form part of the village of the plaintiffs, that is, Bisipada. Exts. G. L. and M. are the certified copies of the affidavits filed on behalf of the plaintiff-1 in the aforesaid Section 145 proceeding wherein it was alleged that the plaintiffs' witnesses made some admissions supporting the case of the defendants.

6. As to the evidentiary value of these documents the Courts below have dealt with it at great length. On an analysis of the evidence, they have held that the disputed land was unsurveyed and it does not form part of plot No. 13 of Mandiapadar village as claimed by the defendant. It is open to the Civil Court to assess the evidence and come to its own conclusion contrary to that arrived at by the Revenue Authorities. Exts. L. G. and M. are some of the affidavits filed on behalf of the present plaintiffs in the proceeding under Section 145, Cr. P. C. It was submitted that the plaintiffs' witnesses in those affidavits admitted that plot No. 13 is locally known as 'Rangukuti' (Ext. G) and that the present suit-land formed part and parcel of that land. It is said that this admission is binding or the plaintiffs and on the footing of the said admission, it should have been held that the plaintiffs had no title to the same and that it is the property of the defendants.

But it is well settled that it is open to a party to prove an admission to be erroneous by adducing necessary evidence for the purpose: see AIR 1960 SC 100, Narayan v. Gopal. Both the Courts have found on evidence that Rangukuti is merely the name of the Chhaka or area where the land is situate, but the disputed land is known as Chhabirikuti which is part of a big Chhaka. The Courts below also took into consideration the report of the commissioner appointed in this case to make local inspection in the presence of the parties. He found that the present suit-land is unsurveyed and unassessed, and though cultivable, was at the disposal of the Government and that the land is called Chabirikuti and is at a pretty distance from survey No. 13 of village Mandiapadar and can never form part of the same. In view of this evidence, the Courts below rejected the defence version that the survey plot No. 13 of village Mandiapadar is the same as the disputed property. Thus, the admission of the plaintiff's witnesses in Exts. L, G and Mhave been sufficiently explained and proved to be erroneous.

7. It was next urged and the only substantial point urged in the appeal is that the plaintiffs are not entitled to recover possession from the defendants except on proof of title. The disputed property is Government land and admittedly the plaintiffs claim to be in possession only for a period of thirty years and not for sixty years as is required under the law to perfect their title by prescription. As the plaintiffs base their claim to recover the disputed property from the defendants on the strength of their previous possession it was urged that the suit must fail as it was not brought within six months of dispossession.

8. In support of his contention the learned counsel for the appellants relied upon a decision reported in (1879-80) 7 Ind App 73 (PC) Wise v. Ameerunisa Khatun. I shall, however, refer to this decision a little later. But before entering into discussion on that question it is necessary to examine what exactly is the nature of the order passed in a proceeding under Section 145(6), Cr. P. C. and what is the nature of the suit that the unsuccessful party in that proceeding has to file to evict the party in whose favour the order is made.

9. Under Section 145(6), Cr. P. C. the Magistrate is called upon, if possible, to decide as to which of the parties was in possession of the disputed property and to declare the said party to be entitled to retain possession of the same until evicted therefrom in due course of law and forbidding all disturbances in such possession until such eviction. In the said proceeding the Magistrate is not called upon to decide the question of title. Several courses are open to a party when an adverse order is made against him. He may file a suit under Section 9 of the Specific Relief Act to recover possession, notwithstanding any other title that may be set up in such a suit. In such suits he may without the aid of title sue on mere prior possession. Such a suit has to be brought within six months from the date when the dispossession occurs.

The object of the section is to obtain a summary and speedy remedy from the Civil Court for restoration of possession of the party who has been dispossessed. He may also file a suit as provided under Article 47 of the (old) Limitation Act within three years from the date of the final order under Section 145(6), Cr. P. C. to recover property comprised in such order being a person bound by the said order respecting the possession of the property. He may also take recourse to other remedies where available, for eviction of the other party under any statute.

The present suit has not been filed under Section 9 of the Specific Relief Act within six months from the date of the order, but within three years as provided under Article 47 of the Limitation Act. There is no dispute over the legal position that Article 47 of the Old Limitation Act applies to a suit for recovery of property by an unsuccessful party in a proceeding under Section 145, Cr. P. C., and the presentsuit has been brought within three years fromthe date of the final order.

The contention of Mr. Murty, however, is that the suit-land is Government land and the plaintiffs have been in possession only for a period of thirty years. As possession for a period of sixty years is necessary to confer an adverse title on such Government property, the plaintiffs have not perfected their possessory title and as such cannot succeed on the basis of such title. Since the plaintiff's suit is one for declaration of title and for recovery of possession, and as the plaintiffs have acquired such tide, no recovery of possession can be granted and the suit must fail.

He conceded that if it would have been a mere case of recovery of possession and the suit would have been filed within six months under Section 9 of the Specific Relief Act, the position would have been different and the plaintiffs' right to recover possession could not have been challenged. In this context, it is necessary as already said to examine what exactly is the effect of an order under Section 145 and what is the nature of the suit that has to be filed by an unsuccessful party in such a proceeding to evict the successful party and whether proof of title is incumbent. .

10. It is well settled by authorities that in passing an order under Section 145(6) Cr. P. C. the Magistrate does not purport to decide theparty's title or his right to possession on land, but expressly reserves that question to be decided in due course of law. The said orders are merely police orders and are conterminous with the passing of the decree by the Civil Court and the moment the Civil Court makes an order of eviction, it displaces the order of the Criminal Court. It is not disputed that a suit filed under Section 9 of the Specific Relief Act only for recovery of possession could be filed within six months.

The question posed in this case is whether in all cases of suits for recovery of such property filed under Article 47 witnin a period of three years is it necessary for the unsuccessful party to establish his title before he succeeds in obtaining an order for eviction of the successful party in the criminal proceeding? In other words, whether the proof of declaration of title is incumbent on the plaintiff before he evicts the successful party in due course of law. In this context, it may be relevant to examine what exactly is the scope of the expression 'due course of law' and whether a person could be evicted in due course of law even by Courts other than civil Courts and that without proof of title.

11. In a Division Bench decision of this Court reported in AIR 1954 Orissa 129, Bhima Sahu v. Ramanath Sahu, the question was what is meant by 'eviction in due course of law' as required under Sub-section (8) of Section 145 and is it necessary that the unsuccessful party must obtain an order from the Civil Court? That was a case where some of the parties claimed to be in possession as Bhagchassis. A proceeding under Section 145 was started where possession was declared in favour of the otherside. The unsuccessful Bhagchasis made an application before the Revenue Authorities under the O. T. P. Act alleging that they are entitled to be restored to possession as they were in possession of the disputed land as Bhagchassis.

The Revenue Officer construed the words 'in due course of law' as meaning 'in pursuance of an order or decree of the civil Court' and rejected the petition saying that the only remedy available to the party was by way of a suit in the Civil Court. The matter came up before the High Court in a Writ Application and it was observed that an order of eviction by a Revenue Court is also one passed 'in due course of law' within the meaning of Section 145(6), Cr. P. C. and it makes no difference whether the Revenue Court or the Civil Court directs eviction of the party who was declared to be in possession in a summary proceeding under that section.

12. In a case reported in AIR 1917 Pat 220. Krishna Dayal Giri v. Nirmali, the expression 'in due course of law' came to be construed and it was held that it did not necessarily mean a decree of the Civil Court, but it may also include an order of a Court acting under the statutory authority. Thus, the expression 'in due course of law' as contemplated under Section 145(6) is not confined to a decree of the Civil Court alone, or a decree based upon title.

13. I shall now revert to deal with the main contention of the appellant. On the facts of this case, the position is that the property belongs to the Government. The plaintiffs claim to have been in possession for a period of thirty years and thus they cannot be said to have perreeled their title by adverse possession. Both the courts however have found long possession of the plaintiffs and have rejected the case of the defendants saying that they had no title or right of possession.

The short question is whether the plaintiffs could recover possession of the suit property without having established their title when they filed the suit beyond six months. It was argued on behalf of the respondents-plaintiffs that on the findings, the defendants have no title to the suit property and their possession is that of mere trespassers and in such position the plaintiffs could succeed even on their prior possession and without proof of title.

14. The case reported in (1879-80) 7 Ind. App. 73 (PC) referred to above and relied upon by the appellants may now be seen. That was a case where the plaintiff was evicted by the defendant who derived title from the real owner, the Government. The Magistrate ordered the defendant to retain possession. Their Lordships observed: 'If the plaintiffs wish to contend that the defendants have been wrongly put into possession and that they are entitled to recover possession on the strength of their previous possession without entering into the question of title, they ought to have brought an action within six months under Section 15 of Act XIV of 1859' (now reproduced in Section 9 of the Specific Relief Act 1877).

This decision of the Privy Council has been explained in (1884) ILR 8 Bom 371, Krishnaray Yashvant v. Basudev A. Ghotikar. Their Lordships said that the above remark should be read in conjunction with the conclusion in the previous paragraph which when so read makes it clear that the plaintiffs in that case were evicted by persons deriving title from the real owners. In the case decided by them, their Lordships held that in suits filed beyond six months, plaintiff can rely on his previous possession as against a person who had no title. I am in respectful agreement with the view expressed in the aforesaid decision of the Bombay High Court.

In the present case the defendants have no title to the land and are mere trespassers though equally the plaintiffs alleged to be in possession have not perfected their title by prescription. The question is whether in such a case the plaintiff to succeed must prove his title if he brings a suit beyond six months. The aforesaid decision of the Bombay High Court already quoted is an authority for the proposition that in such a case the plaintiff can rely on his previous possession. Though divergent views have been expressed there is authority for the proposition that the person in possession of the land without title has interest in the property which is good against the whole world except the true owner. See (1893)20 Ind App 99 (PC), Ismail Ariff v. Md. Ghous, AIR 1950 Pat 222, Subodh Gopal v. Province of Bihar.

15. In a decision of this Court reported in ILR (1963) Cut 482 (487), Gadadhar v. Karsan Basta Patel the findings were that the defendants had failed to prove their title and the plaintiff established his long possession though it was short of 12 years. It was held that the plaintiff is entitled to a decree for eviction independently of Section 9 of the Specific Relief Act and on the basis of his possessory title against a rank trespasser. In view of this position of law the contention of the learned counsel for the appellants cannot be accepted. The plaintiffs though have failed to establish their title, are entitled to a decree for the eviction of the defendants from the suit-property.

16. In the result, therefore, the appealis dismissed, but in the circumstances of thecase each party to bear his own costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //