I.N. Modi, J.
1. These are two cross appeals arising out ofthe judgment of the Civil Judge, Churu, dated 21-4-1953, in a suit for possession of certain land, and we have also before us the cross objection filed by defendant Nathmal and his three brothers. Appeal No. 28 of 1953 was filed by Madanlal plaintiff in this Court, while appeal No. 34 of 1954 was filed originally by defendant Nathmal and others before the District Court and thereafter re-presented to this Court on 15-2-1954.
These defendants thereafter filed a cross-objection in this Court in order to avoid the plea of limitation, which might possibly have been raised by the plaintiff on the ground that the defendants had filed their appeal in the wrong court and had presented it in this Court long after the period of limitation had expired, but there is no dispute before us that the cross-objection was filed within one month's time of the service of notice of the plaintiff's appeal on these defendants. We proceed to dispose of these matters by this judgment.
2. The dispute between the parties relates to two plots of land situate in the town of Churu, -- these plots being adjacent to each other. The plaintiff's case briefly put was that his ancestors Rambhagatdas Jokhiram had purchased these two plots in Samwat years 1907 and 1924 and had obtained two separate pattas for each of them. The land purchased in S. 1907 is marked 'A' and that purchased in Samwat 1924 is marked 'B' in the site plan Ex. P-1 produced by the plaintiff along with his plaint.
It may be mentioned at once that plot A was admittedly in the possession of defendants respondents Eajranglal and Gulabchand, and plot B of defendant Nathmal and his brothers at the date of the suit. According to the plaintiff, he is a resident of village Bisau and has been living in Bombay in connection with his business there, and so he left these plots, and a shop (with which we are not concerned), under the care of Nagarmal Madanchand Chow-dhari whom he had sometime later appointed as his aam mukhtar. The plaintiff's case is that Sheobux Rai, father of defendants respondents Nos. 1 and 2, being some sort of relation of Nagarmal Madanchad, had obtained from the latter an oral licence to use these plots for purposes of stacking fire-wood and preparing cow-dung calces etc. and he was thus in temporary use of the plots in question though the exact period for which he was in such possession is not disclosed.
It is alleged that after some time Sheobuxrai expressed a desire to purchase these plots but the proposal did not materialize because the plaintiff had asked for a higher price than what Sheobuxrai was prepared to offer and this annoyed Sheobuxrai, and so, it is said that he entered into a conspiracy with defendants Nathmal and his brothers on the one hand and defendants Bajranglal and his brother Gulabchand on the other, and put Nathmal and others in possessionof plot B and Bajranglal and Gulabchand ofplot A, and it is further alleged that SEeobuxrai did so because defendants Nathmal and hisbrothers were his close relations and Bajranglal and Gulabchand were the Munims of defendants Nathmal and others.
The plaintiffs case further was that as the original pattas had somehow been lost and were missing, he applied in Churu Tahsil for new pattas some time in 1945, but his prayer was opposed by Sheobuxrai as also Nathmal and his brothers and Bajranglal and Gulabchand as a result of which by an order of the Tehsildar dated 27-4-1951, he was directed to have his right established in a civil court. Consequently, the plaintiff instituted this suit in the court of the Civil Judge, Churu, on 20-10-1951, in which he has valued these plots as Rs. 7000/-. The other defendants Ratilal and others are relations of the plaintiff and were impleaded merely as pro forma defendants. Defendant Sheobuxrai allowed the suit to proceed ex parte against himself, and the two sets of contesting defendants resisted the suit.
It is unnecessary to mention their defences separately because they contested the suit more or less on the same lines and their principal contention was that they had been in long and undisturbed possession of their respective plots for about a period of 60 years, and that the plaintiff's case that they had ever entered into possession of these plots with the permission of Nagarmal Madanchand or Sheobuxrai was entirely false and unfounded. Their case further was that they had been in exclusive possession of these plots on their own and kept them under lock and key and that they had built a Dhalia (tin-shed) on each of the plots and that this had been standing on the site for the last fifteen years and over. These defendants also pleaded that the plaintiff's suit was barred by time as he had never been in possession of the suit plots within 12 years of the institution of the suit.
3. The learned Civil Judge decreed the plaintiff's suit so far as the plot marked B was concerned, but dismissed it as regards the other plot. It is this decision which is challenged before us, -- the plaintiff contending in his appeal that the entire suit should have been decreed, and the defendants Nathmal and others contending that the suit should have been dismissed with respect to plot B as well which was in their possession for more than 12 years before the institution of the suit. It may be pointed out here that the finding of the learned Civil Judge on the question of title win respect to both the plots was in favour of the plaintiff. This finding is also strenuously attacked before us.
4. There are thus two main points for determination before us. The first question is whether the plaintiff has failed to prove his title with respect to the suit lands and the finding of the trial Judge in this connection is untenable. The second question is which of the two articles of the Limitation Act, namely, 142 or 144 is properly applicable to the plaintiff's suit, andif Article 142 is held to be applicable, whether theplaintiff's entire suit deserves to be dismissed inasmuch as it has not been brought within 12 years of his dispossession or discontinuance of possession within the meaning of that Article.
5. We shall first take up the question of title. It has to be remembered at the very outset that the plaintiff has produced in support of his title not the original pattas alleged to have been obtained with, respect to the suit plots in favour of his ancestors Bhagatdas Jokhiram but what he calls 'true copies' of these two pattas, and these have been marked as Exs. P-E and P-F on the record. A perusal of these copies shows that each is a copy of a copy of an original patta. The plaintiff produced P. W. 3 Bhanwarlal to prove these copies. This Bhan-warlal seems to be the hereditary record-keeper of what is called the Rampuria office which is said to be a branch of the office of the Commissioner at Bikaner, and this branch is concerned with the issue and recording of pattas.
It seems that the plaintiff had sent for patta file No. 111 from the patta court, which was started 'when the plaintiff applied for fresh pattas for the plots in dispute. According to Bhanwarlal these pattas (or their copies -- for it is not quite clear whether the original pattas had been sent) had been sent to him for verification and that he had verified them from the Patta Bahi, and the main particulars mentioned in the Bahi and in the pattas tallied although the copies produced by the plaintiff in the patta department were not exact copies of the entries in the patta Bahi.
The copies of the pattas produced on the record Ex. P-E and Ex. P-F bear the signature of Bhanwarlal in token of his having verified them with the patta Bahi in the Rampuria office. Bhanwarlal also produced two entries from the patta Bahi in this connection. Ex. P-H is the entry relating to the patta of S. 1907 while Ex. P-G is the entry relating to the patta of Samwat 1924, nOW, the first thing which is remarkable so far as the patta of S. 1907 is concerned is that it does not bear the name of the person in whose favour the patta was being issued.
We have, however, the evidence of Mahaveer Prasad P. W. 4 in this connection, according to whom the name of the purchaser, that is, Ram-bhagatdas Jokhiram, was mentioned on the margin of the original patta and that he had made a copy of the Patta himself and that that copy also contained that name, though the writing on the margin of the copy of the patta has now been cut out. The testimony of this witness is that he had made true copies from the original pattas of Samwat years 1907 and 1924 and that he had got both these copies verified in the Tehsil by one Narain Gumashta. When precisely these copies were made by Mahaveer Prasad and for what purpose, is not disclosed by him. It should also be remembered that this Mahaveer Prasad is the son of Madanlal Chowdhari -- the aam mukhtar of the plaintiff.
6. Turning next to P. W. 6 Narainram who admits to have been the person who had verified the copies of the pattas of Samwat 1907 and Samwat 1924 from their originals, thiswitness was prepared to swear that the portion on the margin which appears to have been cut out was not so cut out when he had compared these copies of the pattas with the originals thereof. It is clear that this witness compared the copies on 14-7-1943. It is well to remember in this connection that the plaintiff had made an application for grant of the fresh pattas not earlier than March, 1945.
It is, therefore, not easy to understand why it became necessary for the plaintiff or any body on his behalf to have got copies of the original pattas compared in the manner in which they are stated to have been compared. Again, we are entirely at a loss to understand why and how it became the duty of Narainram to compare and attest these copies. According to Narainram, he had compared the copies and returned them to the person who had brought themto him. In his cross-examination he admitted the possibility that nothing might have appearedon the margin of the original patta of 1907.
7. The plaintiff also produced P. W. 10Ibrahimkhan who was Peshkar in the Churu Tehsil from 1943 to 1946. This witness admitted that the pattas of Samwat 1907 and Samwat 1924 had been sent for verification to the Ram-puria office in patta case No. 111 of 5-5-45, but no verification was received with respect to the alleged writing on the margin.
In the first place, we are not at all satisfied as to whether the original pattas had Been produced by the plaintiff in the Patta Department, or what was produced was merely the certified copies which were attested by Narainram Gumashta in July, 1943. Secondly, we have before us a copy of the entry from the Patta Bahi from the Rampuria record office relating to the patta of Samwat 1907, and it clearly appears from a perusal of it that the name of the person who was the purchaser of the land in question and in whose favour the patta was being issued was not mentioned at all.
This was, therefore, what is popularly called 'pol-ka-patta', and anybody could try and take advantage of it. But, in our opinion, this cannot be allowed until and unless the person who claims his title on the basis of such an entry is able to produce the original patta being in legitimate possession thereof and is also able to show convincingly that be is in possession of the relevant land, and such person must be able to relate the patta on which he relied to the land which he claims to be his property but to this last-mentioned aspect of the case, we propose to address ourselves more closely a little later.
All that we wish to point out at this stage is that the failure of the plaintiff to produce the original pattas which are important documents of title is a factor which operates against him. The matter becomes still more suspicious when an attempt is being made to have certain copies prepared by an agent of the plaintiff, verified by an unauthorised person and there was no occasion for such verification at the time it is alleged to have been obtained. We feel, there-fore, that it will be extremely unsafe for us toplace any reliance on the so-called copies of these pattas Ex. P-E and P-S assuming that they are proper secondary evidence of the originals, and were admissible in evidence. We propose, therefore, to confine our attention to Exs. P-H and P-G which are the entries produced by p. W. Bhanwarlal from the patta office with respect to pattas granted in Samwat 1907 and Samwat 1924 respectively.
8. The next question is whether these entries pertain to the land in dispute. Let us take Ex. P-H first which relates to Samwat year 1907. This entry pertains to 924 square Gaz of land. This land has been described as 44 Gaz east --West and 21 Gaz north, south, equal to 924 sq. Gaz. It is then further stated that the land is facing west and that on the right-hand side as one enters (i.e., on the South) lay open land and on the northern side was the land of Sampartrai Goindka and on the back was the city wall.
Now if we look at the plaint, we find that a 'rasta' is shown on the west as in the copy of the entry Ex. P-H but the eastern boundary is said to be the 'nohra' of Nagarmal Pandruwala and the house of Udaram Khemka, whereas according to the patta, it is ^^'kgj iukg jh yQkZy** that is, the city wall. It is true that we are here trying to locate the land covered by a patta given in S. 1907 but all the same if the plaintiff relies on the patta as the document of his title, it is certainly his duty to show how the boundaries given in the patta tally with the boundaries on the spot when the suit was brought.
There is no legal evidence on this record that Nagarmal's N.ohra and Udararn's house stand today where there used to be a city wall at the time the patta was granted. The plaintiff even did not produce in evidence these alleged neighbours to show how they had come to live in these houses and whether they knew anything about the land forming the western boundary of their houses to be of the plaintiff. On the northern side the patta mentions the boundary to be the house or land of Sampatrai Goindka whereas the plaint shows that on this side there is the 'bara' of Jaideo Lohia and the 'Haveli' of Nagarmal Pandruwala.
We have no manner or means of knowing how these persons are connected with Sampatrai Goindka who is mentioned as a neighbour on this side in the patta. Again, so far as the southern boundary is concerned, the patta mentions it to be an open land whereas there is the house of Ramlal Nathani on this side at the time the suit is brought. Here again, we are left without any connecting link between the two boundaries as mentioned in the patta and in the plaint. It is clear, therefore, that the boundaries mentioned in the entry of S. 1907 with respect to plot A are not the boundaries which are present on the spot, and, therefore, it is extremely difficult to locate this plot on the spot where it is sought to be located on the material which is available on this record.
9. Turning then to the patta entry of S. 1924, all that it says is that Rambhagat JokhiramEajpuria purchased land measuring 840 Sq.Gaz from one Sonar Vijay Shankar on the northern side of the 'Kot', for Rs. 581/-, and that one fourth of the, price thereof namely, Rs. 93/-was recovered by the State. This entry does not mention any boundaries whatsoever of the land which was purchased by Rambhagat Jokhi-ram, the alleged ancestor of the plaintiff.
It is, therefore, impossible, in the absence of any boundaries given in this entry, to fix the land purchased by Rambhagat Jokhiram as one of the plots in dispute. Even if, for the sake of argument, we were to look at the copy of the patta of S. 1924 EX. P-F produced by the plaintiff and which he alleges to be a true copy of the original patta, this mentions the land of Ramrakh Pandruwala on the back or the eastern side and the land of Kheta Bazaz on the left, that is the northern side, and on the southern side is mentioned the patta-holder's own land.
But obviously it is impossible to locate the entire area covered by this patta with any reasonable certainty until and unless the boundaries on the two relevant sides, namely, the northern and the eastern, are shown to tally both in the copy of the patta and on the spot, which they do not, inasmuch as, according to the plaintiff himself, we have the Nohra of Nagarmal Pandruwala on the east as the house of Jaideo Lohia and the 'Haveli' of Nagarmal Pandruwala on the north and the present boundaries of the alleged land.
10. We must point out here that the learned Judge of the trial court has gone completely wrong as to the manner in which he has tried to relate the land in dispute to that covered by the pattas in question, when he has endeavoured to locate or fix the disputed plots of land on the spot by reading the recitals of boundaries mentioned in certain other pattas relating to lands alleged to have been in the neighbourhood of the plots in dispute.
Thus the learned trial Judge relied on Ex. P-I Ex. P-L and Ex. P-15 and Ex. P-5 to tome to the conclusion to which he did. Now Ex. P-I is a copy of the patta entry of S. 1922 of one Hamrakh Pandruwala. This entry only shows that Puranmal's mother and his widow had sold certain land to Ramrakh in S. 1922. The boundaries of this land have not at all been given in the entry.
We do not understand, therefore, how it is possible to hold that Nagarmal Pandruwala who is the eastern neighbour of the land in dispute at present has any connection with Ramrakh Pandruwala who is mentioned as a neighbour of the plaintiff's land on the eastern side in the patta of Samwat 1924, unless we make a wild conjecture that Nagarmal Pandruwala is occupying the house which was formerly purchased by Ramrakh Pandruwala. Ex, P-L is a patta in favour of one Mst. Kesar widow of Jamna-dhar Agrawala and is D/-3-8-1939. Ex. P-15 is a sale-deed by Mst. Kesar in favour of Udairam Khamka and is dated 6-1-1943.
In both these documents the western boundary is shown to be Jokhiram's land, that is, some land belonging to the plaintiff's ancestor Jokhiram. It must, however, be pointed outthat these documents are much too recent to have any probative value as they came into existence almost about the same time as the controversy between the parties of the present suit arose, and, therefore, no reliance can be placed on entries of this character.
The last entry relied by the court below is Ex. P-5. This is a patta entry of Samwat 1938 in favour of Nathani Bahadurmal, and it is stated therein that on the northern side is the land of Joshi Rampuria. Assuming that Joshi Rampuria is the ancestor of the plaintiff, the question still remains whether Bahadurmal, Sheolal, Vishendayal Nathani have anything to do with Ramlal Nathani who was admittedly the southern neighbour of the plots in question at the date of the suit.
11. What we wish to point out by the analysis made above is that no attempt whatsoever has been made to connect the present boundaries of the plots in question with the boundaries mentioned in the other documents produced by or on behalf of the plaintiff. The owners of the alleged neighbouring lands were not produced at all, and P. W. Madanchand is the only person who has endeavoured to connect these other documents with the plots in dispute by saying that one of the boundaries mentioned in some of these documents is the plaintiff's land on some side or the other.
But even Madanchand has had to admit that he has no personal knowledge of the connection sought to be established by him, and that he has given his evidence on the basis of certain pattas and other documents produced by him. Taken at the highest, this evidence is of little avail, and is certainly insufficient to locate the situation of the plots in dispute.
We also cannot forget that all these other documents which have been relied upon by the court below are documents between strangers to which none of the defendants was ever a party. These documents were in fact completely between parties who are strangers to the present dispute. In these circumstances, It has been contended before us that the recitals re-lied upon by the court below as to boundaries mentioned therein and in some of which the plaintiff's land has been shown as adjoining are, strictly, speaking, not admissible in evidence at all. This contention is not without force.
12. Now, it appears to us that the correct, legal position as to recitals of boundaries in documents is something like this. Where a recital has been made in a document 'inter parties', it would be a joint statement made by the par-ties to the document, and, therefore, relevant against them as an admission. Again, where the recital occurs in a document between a party and a stranger, it would be relevant against a party as an admission but not admissible in his favour.
Where, however, the recital is in a document between strangers, it is not a particular instance in which a right was claimed, recognized or exercised or a transaction by which a right was claimed or asserted within the meaningof Section 13 of the Evidence Act. There was at one time a fairly serious conflict of opinion as tothe admissibility of recitals of boundaries mentioned in documents executed between strangers where one of the parties to the suit was mentioned as owner of an adjoining land.
At this date, however, there seems to be a heavy preponderance of opinion that recitals of boundaries in documents between third parties are inadmissible to show that any party to the suit is or is not the owner of an adjoining land which has been mentioned as one of the boundaries in such documents. The principal reasons for this view appear to be two in number. In the first place, it will not be right to hold a party bound or affected by a recital as to the making of which he could have no control whatever and which has been made completely behind his back.
In the second place, such third parties have no particular reason to be accurate as to who is the owner of the land adjoining their own, and, therefore, a mistake may easily creep in, in the mentioning of such boundaries. Boundaries may often be mentioned on imperfect knowledge or merely on hearsay information. We are, therefore, of the opinion that recitals of boundaries in documents between third parties should not be held to be admissible in evidence in proof of title of the parties seeking to rely upon them. Reference may be made in support of this view to Choonilall v. Nilmadhab, AIR 1925 Cal 1034 (A); Karuppanna v. Rangaswami, AIR 1928 Mad 105 (2) (B); Hari Ahir v. Sanghat Chacha, AIR 1934 Pat 617(2) (C); Nanak Chand v. Mian Mohammad, AIR 1936 Lah 114 (D) and Bhagwan Das v. Parabh Dial, AIR 1936 Lah 1005 (E).
13. In this view of the matter, the learned trial Judge was wrong in taking support of the other documents referred to above to come to the conclusion that the plaintiff's two plots of land in dispute were situate at the particular site where he wishes to locate them. Even if we were to hold that these documents can be taken into consideration we are of opinion that no reasonable connection has been established between the boundaries as they existed at the date of the suit and those which are mentioned in these other documents.
The result is that the finding of the learned trial Judge that the plaintiff has succeeded in proving the suit plots of land to be his on the basis of the evidence discussed above is wrong and cannot be maintained either in law or in fact. The utmost that can be found in favour of the plaintiff is that it may be that his ancestor purchased some land in Churu, whether he purchased the land covered by both the entries of Samwat 1907 and Samwat 1924, we cannot say -- and he has not been able effectively to prove where exactly such land is situate, and it is impossible for us affirmatively to reach the finding that the land which his ancestor did purchase can be located, with reasonable certainly, at the site at which the plaintiff wants us to locate them.
14. We may also add here that this conclusion is not displaced, in our opinion, by anything deposed to by D. W. Ladooram who was produced by the defendants in support of the plan Ex. A 1 prepared by him. We may point out that the learned trial Judge was not right when he concluded that his evidence supported the case of the plaintiff as to title, for it may indeed be possible to set a certain patta or pattas on open land anywhere but such a setting is of no use to fix the identity of the land covered by the pattas unless there are check-points available in the shape of certain and known boundary marks thereof and the patta-setter shows to have done the setting with reference to such marks. In fact this witness had stated in his examination, in chief that it was not possible to fix the land in dispute as covered by the pattas or the patta entries of Samwat 1907 and 1924 as their boundaries did not tally.
15. The next question is which Article of the Limitation Act applies to the plaintiff's case. Before we deal with this legal question, we wish briefly to dispose of the plaintiff's contention that he had entrusted the suit lands to the care of Nagarmal Madanchand Chowdhari, and that thereafter the latter had allowed, some time in 1997 Samwat Sheobuxrai, father of the defendants respondents Nos. 1 and 2, to enter into permissive possession of the property, and the latter had then conspired with the other defendants and allowed them to occupy the same, (His Lordship after discussing the evidence continued as follows).
In this view of the matter, we entirely agree with the learned trial Judge in his conclusion that the story put forward by the plaintiff that Sheobuxrai had come into permissive possession from Nagarmal Moolchand and that he had later conspired with the contesting defendants-and put them into possession is utterly false and cannot be believed. This conclusion further leads to the result that' in all probability the contesting defendants came into possession of the disputed land not in Samwat 1997 or there-after as alleged by the plaintiff but their pos-session was much older than that.
16. Now for the purpose of determining: whether the plaintiff's suit is governed by Article 142 or 144 of the Limitation Act, we shall assume that the finding of the trial Judge as regards the plaintiff's title to the disputed plots of land was correct. It cannot however be disputed that the contesting defendants have been certainly in possession of the land in controversy at least from 1945 A. D. The present suit was brought on 20-10-1951. The plaintiff's case succinctly put is that he was the owner of the suit lands and that his agent had allowed the defendants to enter into permissive possession of the same and thereafter they refused to vacate the land.
The plaintiff's story that his agent had allowed the defendants to enter into permissive possession in Samwat 1997 was discarded by the court below and is not acceptable to us either. The plaintiff has further clearly stated in his evidence as P. W. 1 that before the plots weregiven to Sheobuxrai in 1997, he was in possession of them.
^^laor~ 1997 esa f'kocDl jk;ljkoth dh tehus Hkkxh nsus ds ifgys ;g tehus esjs dCts esa Fkh A**
The case of both sets of contesting defendants on the other hand is that they have been in respective possession of the two plots of land in dispute for the last 40 to 50 years and that they were in such possession at the time when the plaintiff applied for patta for these lands and it was mainly on account of such possession that the plaintiff was asked to have his right established in a civil court.
There is also evidence, which there is no reason to doubt, that there was and is a fencing around both plots of land, and that there is an entrance door to each of the plots, which is kept under lock and key by the respective sets of contesting defendants, and thus each set of contesting defendants has been exercising exclusive possession with respect to their plot of land.
The trial court has fully accepted the version of the defendants respondents Nos. 7 and 8 that they have been in possession of plot A for more than 12 years before the present suit was filed. We have been taken through the evidence of D. W. 1 Geega, D. W. 3 Sanwal, D. W. 4 Durgadutt, D. W, 6 Chiranjilal, D. W. 7 Ganga-ram, D. W. 8 Kalu, D. W. 2 Bajranglal (Defendant) and D. W. 10 Nathmal (also defendant), and there is the uniform testimony of all these witnesses that defendants respondents Bajranglal and Gulabchand have been in possession of plot A for the last 30 to 40 years, and that these defendants have been in possession on their own account and not on behalf of the plaintiff or anybody else.
The learned Judge accepted this evidence so far as plot A (in possession of Bajranglal and Gulabchand) is concerned, and held this to be sufficient to establish their adverse possession with respect to it. But with respect to plot B, he apparently was of the view that the defendants concerned had failed to establish their adverse possession, and, therefore, he came to the conclusion that the plaintiff had filed his suit for this Plot within the statutory period of 12 years.
We cannot help saying that the finding of the learned trial Judge is not as clear or consistent as we should have wished it to be, and is indeed somewhat obscure and confused because while he was disposed to apply Article 142 to the case of plot B (the plot in the possession of Nathmal and other defendants) and held that the plaintiff had established his possession thereof within 12 years of the suit, he has held that Article 144 applied to the case of the other plot A, and that the defendants Bajranglal and Gulabchand had successfully established their adverse possession in, respect of it.
We desire to point out in this connection that the evidence led by the defendants is practically the same for both plots of land, and, ia our opinion, cannot but lead to the same result, namely, that, according to this testimony, the contesting defendants have been in possession of their respective plots of land on their own account for the last 30 to 40 years, and, at any rate, from before 12 years of the filing of the present suit.
It is not, in our opinion, possible to believe this evidence with respect to one plot of land and disbelieve it with respect to the other. Each of the contesting defendants who entered the box supports the exclusive possession of the other. So also the rest of the witnesses. The plaintiff's evidence on the point of possession which the learned trial Judge more or less summarised 'as nothing' so far as plot A was concerned, is, to our mind, in no substantial manner better with respect to the other plot, and if Article 142 is properly applicable to the case as a whole, then we are clearly of the opinion that his suit with respect to plot B is equally barred by 12 years' limitation.
The question then is, assuming that the plaintiff has been able to prove his title, which is the article, namely 142 or 144, applicable to his case. It was contended before the trial court, and this contention was repeated in this Court, that the proper article to apply in a case where the plaintiff sues for possession on title is Article 144 and not Article 142. We have carefully examined this contention and are disposed to hold that this view is not correct, although some courts have held in favour of this view.
17. Let us in this connection examine Articles 142 and 144. These articles read thus :
Forpossession ot immovable property when the plaintiff, while in possession ofthe property, has been dispossessed or has discontinued the possession.
The dateof the dispossession or discontinuance.
Forpossession of Immovable property or anyinterest therein not hereby otherwisespecially provided for.
When thepossession of the defendant becomes adverse to the plaintiff.'
It is clear that Article 144 is a residuary article and properly comes into play when there is no other article applicable to a suit for possession of immovable property or any interest therein. Now, so far as Article 142 is concerned, it is worthy of notice that there are no words therein which limit its application to a suit for possession based otherwise than on title. A suit for possession may be brought on title as well as on possession on the allegation that the plaintiffhas been dispossessed or has discontinued the possession and if such a suit is brought, then it is difficult to see how it can be held to fall within the residuary article and not under Article 142.
Learned counsel for the plaintiff contended that he had not brought his suit on the allegation of dispossession at all but merely on title, and, therefore, Article 142 was not applicable. We wish to say at once that there isno force in this contention. The plaintiff clearly stated in his deposition in court that he had been in possession of the suit lands prior to 1997 Samwat.
He then propounded a case of permissive possession in favour of the father of the defendants-respondents Nos. 1 and 2 in samwat year 1997, and his case further was that thereafter the latter had illegally put certain other persons into possession. This, to our mind, clearly amounts to an allegation of dispossession or discontinuance of possession while being in possession of the suit property.
We may also point out here that there is authority for the view that the plaintiff cannot be allowed to avoid the operation of Article 142 where it properly applies by merely omitting an allegation as to dispossession or by masquerading it as permissive possession. Thus it was held by Full Bench of the Madras High Court in Official Receiver v. Govindaraju AIR 1940 Mad 798 (PB) (F) that drafting a plaint in the manner which disguises the real nature of the suit will not help a plaintiff. Reliance was placed in arriving at this view on an earlier case of the Calcuttta High Court in Gopal Chunder v. Nilmony Mitter, ILR 10 Cal 374 (G) in which it was held that a mere allegation of a tenancy was not' sufficient to relieve a plaintiff from the burden of proving that he or those under whom he claims had been in possession within 12 years, and that if this could be done, such a device could always be resorted to for the purpose of evading the law of limitation. We have no doubt, therefore, that the plaintiff's suit was a suit for possession based on an allegation of dispossession or discontinuance of possession.
18. On a careful consideration of the entire question, we are, therefore, disposed to hold that where a suit for possession is based on title and further possession is alleged and an allegation of dispossession has been made or must be taken to be substantially involved or implicit in the plaintiff's claim, the suit rightly falls within the ambit of Article 142, and the residuary Article 144 should not be applied to such a case.
We are free to confess that the case law is not uniform on this point, and some of the decisions are difficult to reconcile, but we do not think it a profitable task to examine these decisions individually. We shall, however, refer to a few Privy Council cases which clearly support us in the view which we have felt persuaded to accept as the correct one.
19. In Nawab Muhammad Amanulla Khan v. Badansingh, 16 Ind App 148 (PC) (H), the facts were these. The plaintiffs were the descendants of a grantee of a certain 'muafi' land from a king of Delhi. The muafi was resumed in 1837 and at that time they were offered to take the land on land revenue, which offer they declined. Thereafter the defendants entered into possession of the land having agreed to pay land revenue. In 1897 the plaintiffs applied for possession of the land as their ancestral estate.
On the defendants' refusing to surrender the land, the plaintiffs brought the suit. The court of first instance and the first court of appeal held that the plaintiffs were proprietors. A question was, however, raised whether the suit was barred by the Law of Limitation. On the question of limitation, their Lordships observed as follows:
'It appears to be clear that it conies within the terms of the Article 142, and if there has been any doubt in the minds of the Courts in the Punjab as to what was the effect of the law of limitation in cases of this description, it seems to have arisen from the introduction of some opinion that there must be what is called adverse possession. It is unnecessary to enter upon that enquiry. Article 144 as to adverse possession only applies where there is no other article which specially provides for the case.'
Their Lordships then concluded that the Article 142 did provide for the case and that suit was barred by the Law of Limitation.
20. In an earlier case Mohima Chandar Mozoomdar v. Mohesh Chandar Neogi, 16 Ind App 23 (PC) (I), the subordinate Judge having dealt with the plaintiffs' evidence which he was disposed to believe held that when he had showed that the plaintiffs were the rightful owners of the disputed land, it was for the not defendants to show that they were entitled to retain possession of these lands.
Their Lordships of the Privy Council commented that the subordinate Judge's view as a proposition of law was one which hardly met with their approval and laid down that it was not the law that where plaintiffs were shown to be the rightful owners of the land in suit, it was for the defendants to show that they were entitled to retain possession and that the onus was properly on the plaintiffs to prove their possession at some time within twelve years prior to the suit and not upon the defendants to show when they (the plaintiffs), were dispossessed.
21. In Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy Bahadur, 16 Mad LJ 272 (PC) (J), the facts were briefly these. The plaintiff had title in his favour and this was held to be conclusively established. The defendant rested his case on possession. The difference between the admitted possession and the period of limitation was extremely narrow being one year only. In these circumstances the Privy Council observed that the question of onus was important but their Lordships clearly stated that they would adhere to the principle which was enunciated in the case, 16 Ind App 23 (I), referred to above, and that it was for the plaintiff in a suit for ejectment to prove possession prior to the alleged dispossession i. e., within 12 years under Article 142. Their Lordships further observed that the initial fact of the plaintiff's title would come to his aid in an appraisal of the evidence with greater or less force according to the circumstances established in evidence.
22. Again in Keshoprasad Singh v. Madho Prasad Singh, AIR 1928 PC 165 (1) (K), the plaintiff desirous of resuming certain grantsheld by the defendant brought an action for the purpose and obtained a decree for possession of certain villages. Though this decree had been obtained, nothing was done to get possession of the villages and the defendants and their ancestors continued in possession.
In a subsequent suit brought for the possession of these villages, which was dismissed, their Lordships of the Privy Council observed that the true ground for the dismissal was that any challenge of the defendant's right to hold these properties was excluded by the Limitation Act as their possession exceeded the period of 12 years which governed the plaintiff's case.
23. Reference may usefully be made in support of this view to the Full Bench decision of the Allahabad High Court in Bindhyachal v. Ram Gharib, AIR 1934 All 993 (L), and the Full Bench decision of the Madras High Court in AIR 1940 Mad 798 (F).
24. These cases, in our opinion, clearly establish the principle that where a plaintiff sues for possession of property which is in the occupation of another and he bases his suit on title and possession and also alleges dispossession or discontinuance of possession in express words or by necessary implication, Article 142 of the Limitation Act would clearly apply to such a case and the plaintiff will not succeed merely by proving title but he must in addition prove that he has been in possession of the property within 12 years of the suit, and the burden lies on the plaintiff to prove that he was in such possession within 12 years of the suit and not upon the defendant to prove adverse possession for a period of 12 years.
It would of course be another matter where a plaintiff's suit is based on title alone and no allegation of possession or dispossession or discontinuance of possession has been made by him or indeed could be made by him, then in such a case Article 142 can have no application, and, therefore, Article 144 will certainly be attracted into play. Article 144 as already stated is a residuary article in the group of articles beginning with Article 134 dealing with suits for possession of immovable property, and, therefore, can rightly be applied only where a suit does not properly fall within any of the earlier articles.
25. Applying the principles which we have enunciated above to the facts and circumstances of the present case, we have, therefore, to see whether the plaintiff has been able to establish his possession assuming, though not conceding, that he has proved his title within 12 years of the filing of the suit. There is precious little evidence of the plaintiff's possession with respect to either of the plots of land in dispute.
The plaintiff himself lived mostly away from his home town in Bombay where he was carrying on his business. His ammukhtar Madanchand stated that he had handed over permissive possession of these plots to the father of defendants Nos. 1 and 2, namely, Sheobuxrai, the former having been entrusted with the care of these plots in Samwat year 1995 or 1996, andthat Sheobuxrai had somehow managed to put the contesting defendants in possession of these two plots.
We have held, in agreement with the trial court, that this story of permissive possession cannot be believed. On the other hand, there is considerable evidence on the record to which we have already referred above to show that both sets of defendants have been in possession of the land in question for a pretty long time exceeding 12 years on their own account. There is no escape from the conclusion, in these circumstances, that the plaintiff has failed to prove that he was at any time in possession of the plots of land in dispute during 12 years before the present suit was filed.
In this view of the matter also we cannot but hold that the plaintiff's suit is barred by limitation under Article 142 of the Limitation Act and) that Article 144 cannot have any application, in a case like the present, and, therefore, it is not necessary either for the one set of defendants or the other to prove their adverse possession for the statutory period under Article 144 of the Limitation Act.
26. For the reasons mentioned above, we allow the cross-objection of Nathmal and others, and hold that the plaintiff's suit with respect to plot B ought to be dismissed and we dismiss it accordingly. This also disposes of their appeal which was originally filed in the District Court and re-presented later in this Court. We also dismiss the plaintiff's appeal as regards the plot A and affirm the decree of the trial court though on different grounds.
Nathmal and others will be entitled to a single set of costs for their cross-objection on a valuation of Rs. 4500/- with respect to the plot of land in their possession whose value was assessed by the trial court to be Rs. 4500/- and which is also the value put by these defendants on their cross-objection. They will also be entitled to their costs on the same footing in the trial court.
Defendants-respondents Bajranglal andGulabchand will also be entitled to a single setof costs in this Court in the plaintiff's appealon a valuation of Rs. 2500/- fixed by the trialcourt with respect to the plot of land in theirpossession, the same valuation having beenadopted by the plaintiff for the purposes of hisappeal. The plaintiff will bear his own coststhroughout.