1. This appeal under Clause 10 of the Letters Patent filed by Lila Ram is directed against the judgment of learned Chief Justice By which he accepted the regular second appeal of Mehar Chand and other respondents set aside the judgment and decree of Additional District Judge, Delhi, and restored those of the trial Court dismissing the suit for possession of land brought by Lila Ram appellant.
2. The brief facts of the case are that the appellant brought the present suit for possession of 1,893 square yards of land, situated in Mubarakpur Kotla, on the allegation that the same formed part of an area of 6 bighas and 8 biswas included in Khasra No. 525/283 of which the plaintiff was the owner by means of a registered deed of gift dated the 3rd of July 1947 in his favour from the previous owner Durga, defendant No. 8. The suit was instituted on 27th of January 1954. According to the plaintiff, Mehar Chand and other respondents had encroached upon the land in dispute about nine years before the institution of the suit.
3. The suit was contested by Mehar Chand and other respondents who alleged that they had been in possession of the land in suit since about 1921. According to them they had built a boundary wall round the area of land including the land in dispute since a long time and had also sunk a well and constructed certain buildings thereon. They further alleged that in 1934 one Dal Singh instituted a suit against them for possession of 4 bighas and 4 biswas of land including the land in dispute by claiming that the same formed part of Khasra No, 290. A decree was awarded in favour of Dal Singh in that suit but he gave up his rights in the decree and allowed the contesting respondents to retain possession of the same on their making payment of Rs 800 to him. Sometime later it was realised by the Revenue authorities that the land in dispute wasreally part of Khasra No. 525/283 and not Khasra No. 290. The respondents thus claimed to be the owners of the land in dispute by adverse possession for more than 12 years. (3-A) Following issues were framed;--
(1) Is the plaintiff the owner of the land in suit?
(2) Was the plaintiff or his predecessor-in-interest in possession of the suit land within 12 years of the institution of the suit?
(3) Is the plaintiff estopped from filing the present suit?
(4) Whether the defendants Nos. 1 to 7 have acquired title by adverse possession?
(5) In case of decree for possession, are the defendants entitled to any compensation? If so, how much?
The trial Court held that though the plaintiff was the owner of the land, he had failed to prove his possession within 12 years of the institution of the suit and that the defendants had been in adverse possession for a period of more than 12 years. The plaintiff was held to be not estopped from filing the suit. The issue with regard to compensation was held not to arise. The plaintiff's suit was, accordingly, dismissed.
4. On first appeal the learned Additional District Judge held that the plaintiff had proved the possession of his predecessor up to 1944 and, therefore, the plaintiff was entitled to the decree prayed for.
5. On second appeal the learned Chief Justice found that the Additional District Judge had clearly misdirected himself on the question of onus and had hardly discussed the evidence at all on which the decision of the trial Court was based. The learned Chief Justice then dealt with different pieces of evidence on record and came to the conclusion, in agreement with the trial Court, that the plaintiff had hopelessly failed to prove his possession or that of his predecessor within 12 years of the date of the suit. It was further held that the defendants had conclusively established their possession of land in suit for a period of more than 12 years. The judgment of the Additional District Judge, which was considered to be perverse by the learned Chief Justice, was reversed. In the result the appeal of Mehar Chand and other defendants was accepted and the suit of the plaintiff was dismissed.
6. In Letters Patent Appeal Mr. Bhagwat Dayal on behalf of the plaintiff-appellant had of the outset argued that the learned Chief Justice was in error in reversing the finding of the first Appellate Court on the point as to whether the plaintiff and his predecessor had been in possession of the land in dispute within 12 years of the institution of the suit. This was, according to the learned counsel, a purr finding of fact and it could not be set aside in second appeal, however grossly erroneous it may be. In this respect we find that Section 100 of the Code of Civil Procedure gives the grounds on which a second appeal is competent and according to Clause (c) of Sub-section (1) of that section one of the grounds on which a second appeal can lie is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits. The proposition can hardly be denied that if the appreciation of evidence made by the first appellate Court has resulted in an erroneous finding of fact, however grossly erroneous it may be, it would not justify interference in second appeal. At the same time it has to be borne in mind that if in dealing with a question of fact the first appellate Court places the onus wrongly on a party and this approach substantially affects the finding of fact, the finding would be liable to be quashed because the above approach can be considered to be defect in procedure. Likewise, if in dealing with the question of fact the first appellate Court excludes from consideration some evidence on the ground that the same was inadmissible, and if the High Court is satisfied that the aforesaid evidence was admissible, that act would vitiate the finding of fact.
We may in this context refer to the case of V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302. Gajendragadkar J. (as he then was), speaking for the Court, while dealing with Section 100(1)(c) of the Code of Civil Procedure, observed:--
'The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure.'
fn the present case we find that the findings of the first appellate Court were liable to be reversed both because they had been arrived at by a wrong approach on the question of onus as well as by excluding from consideration admissible evidence.
7. So far as the onus is concerned, the learned Additional District Judge took the view that when a plaintiff comes on the basis of title it is not for him to show that he had been in possession within 12 years. In taking this view he relied upon the case of Kallu Mal v. Maman, AIR 1933 Lah 721. It does not, however, seem to have been brought to his notice that subsequently the matter had been considered by a Full Bench of Lahore High Court in Behari Lal v. Narain Das, AIR 1935 Lah 475 (FB), wherein it was held that where in a suit for possession, plaintiff pleadspossession and dispossession, the suit is governed by Article 142 of Limitation Act, 1908 and that it cannot be said that in all cases Article 144 is to govern the case once the plaintiff has proved a title to the property. The same view was affirmed by the majority in another Full Bench case, Santa Singn Gopal Singh v. Rajinder Singh Bur Singh, AIR 1965 Punj 415 (FB), and it was observed as under:
'(7) The pleadings of the parties to which reference has been made leave no room for doubt that the suit instituted by the respondents in the present case for possession was based on an allegation of title as also prior possession in the year 1947 and dispossession and discontinuance of possession subsequently. There is thus a good deal of substance in the argument of Mr. D. N. Aggarwal that the suit was governed by Article 142 and that the decision of the Full Benches of the Lahore and Patna Courts were fully applicable. On this view of the matter the decision of the trial Court must be regarded as having been correctly given with regard to the applicability of Article 142.'
The matter also came up recently before their Lordships of the Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 605, and it was observed-
'The plaintiffs were out of possession of the lands in suit continuously from November 30, 1915 up to May 27, 1925 and again from May 27, 1925, up to the date of the suit. The Dumraon Raj and the pattadars were in possession of the lands in suit continuously from May 27, 1925 up to the date of the suit. In the revisional survey of 1937, the defendants' first party are shown to be in possession of these lands. The plaintiffs alleged possession and dispossession within 12 years. Assuming that Article 47 does not apply, the suit is governed by Article 142. The plaintiffs have failed to establish their possession within 12 years of the suit, and the suit is barred by Article 142 of the Limitation Act.'
We are, therefore, of the view that as the plaintiff in the present case based his claim on title and alleged previous possession of his predecessor & subsequent dispossession by the respondent, it was for him to show that he or his predecessor had been in possession of the property within 12 years of the institution of the suit, and that the suit was governed by Article 142 of the Limitation Act. The finding of the learned Additional District Judge on the question of limitation was thus vitiated because it proceeded upon a wrung notion about the onus of proof.
8. The additional District Judge, in out view, was also wrong in excluding from consideration the plan which had been relied upon by the defendants-respondents. The aforesaid plan had been filed in the earlier case brought by Dal Singh against the defendants and the defendants wanted to rely upon the same in order to show that the property in dispute had been partly built upon even when the earlier suit was brought. The learned Additional District Judge took the view that the aforesaid plan had Been got prepared by the defendants and as such it was not desirable to look at it. This approach was legally not correct because the aforesaid plan, which had been prepared long before the dispute between the present parties, would be a relevant piece of evidence to show as to whether there was some construction upon the land in dispute at the time of the filing of suit by Dal Singh.
9. The Additional District Judge also took no note of material pieces of evidence which were on the record and which clearly went to show that the contesting defendants had been in possession of the land in dispute for more than 12 years before the filing of the suit. These pieces of evidence have been discussed by the learned Chief Justice and in our opinion they clearly establish that the plaintiff or his predecessor were not only not in possession of the property in dispute within 12 years but that the same was in possession of the contesting defendants. In the deed of gift executed by Durga in favour of the plaintiff in 1947 it was admitted that part of the gifted land was in possession of Mehar Chand and other defendants who had built a wall and some buildings thereon. In the Khasra Girdawari of 1944 and the Jamabandi of 1944-45 Mehar Chand and other defendants were shown in possession of the property in dispute since a long time. The words used are 'Qabza Darina'. Although the Additional District Judge took the view that the above entry was the result of patwari's mischief, we agree with the learned Chief Justice that there is no warrant or basis for this observation. After giving the matter our consideration we are of the view that there was ample ground for the learned Chief Justice to interfere with the finding of fact arrived at by the Additional District Judge.
10. Argument has also been advanced that when the defendants took possession of the property in dispute the parties were under the impression that the said property was part of Khasra No. 290, which belonged to Dal Singh, and not of Khasra No. 525/283 which belonged to Durga predecessor of the plaintiff. It is urged that the starting point of limitation for the plaintiff and his predecessor would be when they came to know that the encroachment was of land which was part of Khasra No. 525/283. This contention, in our opinion is not well-founded because the limitation for such a suit starts from the time of dispossession and not unless it be a case like that of a co-sharer from the date when the plaintiff comes to know of the ouster. Further the commencement of adverse possession is not affected by the fact as to who owns the property except in some special cases like that of persons standing in fiduciary relationship qua the actual owner.
Reference has been made on behalf of the appellant to the case of Daya Shanket v Debi Din, AIR 1937 All 238. In that case a person occupied certain plot of land for about 16 years by building a structure upon it. When the plaintiffs agent objected to the structure being built, the person in occupation did not deny plaintiffs title but averred that the plot belonged to another person & that he was prepared to hand it over to the rightful owner. The situation of the plot was such that it was isolated from the plaintiff's mahal by the Trunk Road intervening and being an uncultivated piece of land it did not much attract the attention of the plaintiff. It was held that taking into consideration the peculiar situation of the plot, the mere non-interference with the temporary occupation of the plot in suit by the defendant, who was a tenant of the other landlord in the adjacent fields, would not constitute any adverse possession. It is obvious that the facts of that case are clearly distinguishable and can be of no assistance to the appellant in the present case.
11. The appeal, consequently, fails and isdismissed with costs.