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Haji MumtajuddIn Vs. Debendra Nath Seal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 329 of 1952
Judge
Reported inAIR1959Cal78
ActsEvidence Act, 1872 - Section 114; ;Bengal Tenancy Act, 1885 - Section 103B; ;Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101 - Order 41, Rule 27; ;Limitation Act, 1908 - Section 14 - Schedule - Articles 142 to 144; ;Tenancy Laws
AppellantHaji Mumtajuddin
RespondentDebendra Nath Seal and ors.
Appellant AdvocateBenoyendra Prasad Bagchi and ;Hari Charan Banerjee, Advs.
Respondent AdvocateP.N. Mitter and ;Kashi Nath Mitra, Advs.
DispositionAppeal dismissed
Cases ReferredBaijnath Prosad v. Nursingdas
Excerpt:
- .....become adverse to the plaintiff until the latter was entitled to get delivery of possession of the suit land. this date was 19-2-1932 at the earliest, that is, the date when the sale became final and conclusive. the suit having been instituted on 18-2-1932, the requisite period of adverse possession was not completed and it fell short by one day. so the second contention urged by mr. bagchi on the question of adverse possession must fail.14. the third and last contention urged by mr. bagchi on the question of adverse possession was that the plaintiff respondent is not entitled to the deduction of the period during which the suit remained pending in the court of the munsif, and if that deduction is not allowed the claim of the plaintiff respondent must be held to have become barred by.....
Judgment:

Renupada Mukherjee, J.

1. Two questions have arisen for our decision in this appeal, first, what is the true location and identity of the land purchased by plaintiff respondent, Debendra Nath Seal, at a collectorate sale held on 22-12-1931 for arrears of land revenue and secondly, whether the claim of the plaintiff respondent is barred by limitation or adverse possession. These questions have arisen on the following allegations of the plaintiff in his plaint,

2. One David Alexander Wills was the owner of a holding in Dihi Panchannagram, Division 5, Sub-division J, of 24 Parganas Collectorate bearing No. 87 of Smart's survey and No. 104 of the old survey and also bearing a Sadar Jama of -/6/7 pies. The holding was sold through the collectorate of 24 Parganas for arrears of land revenue and purchased by the plaintiff respondent who obtained a sale certificate. The plaintiff attempted to take delivery of possession through the collectorate but was resisted by one Pannalal Rajak and others on the ground that the land really purchased by the plaintiff was a different land and the land of which the plaintiff wanted to take possession was really holding No. 105 and not 104 of the old survey. Thereafter the plaintiff got his name mutated in the collectorate and also applied for demarcation of his land under the provisions of the Bengal Survey Act and it was found by the surveyor after relayment of several maps in presence of the interested parties that holding No, 87 of Smart's did not correspond with holding No. 104 of the old survey, but it corresponded with a part of old rent free holding No. 105 and the old holding No. 104 corresponded with a part of Smart's holding No. 140. This survey case was disposed of on 14-2-1944, but the principal defendants Nos. 1 and 2 wrongfully kept the plaintiff out of possession of the disputed land and so he instituted the suit for declaration of his title to the disputed land, for recovery of Khas possession thereof and of mesne profits.

3. The suit was contested by defendant No. 1. His defence in the main was that the plaintiff having purchased holding No. 87 of Smart's survey he is not entitled to claim any land outside that holding. The defendant also pleaded limitation.

4. The trial court negatived the defence of the contesting defendant and decreed the suit. This decree was confirmed in the appeal filed by de(sic) No. 1 and so he has preferred this second appeal.

5. The points requiring decision in this appeal are :

(1) What is the identity of the land purchased by the plaintiff at the collectorate sale? Is the plaintiff respondent entitled to claim any land outside Smart's holding No. 87?

(2) Is the claim of the plaintiff respondent barred by limitation or adverse possession?

6. We shall take up these two points one after another.

7. As to the first point, there is no question that the plaintiff respondent did purchase a holding of Dihi Panchannagram within the collectorate-of 24 Parganas and that the number of the holding is 87 according to Smart's survey which took place during the years 1903-1907. There was one other authoritative survey after that, namely, the Cadastral Survey of 1928-29. It was not disputed before us that the plan of the G. S. survey agrees with the plan of Smart's survey. Mr. Bagchi contended on behalf of the defendant appellant that these two surveys being of later dates than the survey of Smyth and Billon, the respective dates whereof were 1847-53 and 1868-70, and there being a presumption of correctness in favour of the C. S. records the two later surveys should prevail over the two earlier surveys and it should be held that the plaintiff respondent purchased holding No. 87 of Smart's survey and no other land. In support of this contention Mr. Bagchi relied on a case reported in : AIR1935Cal710 (Bhupendra Krishna v. Abdur Rahaman) in which it has been held that in a conflict between the old record-of-rights and the recent record-of-rights, the recent record is to be presumed to be correct unless it is proved by evidence to be incorrect and the burden of proof to show that it is incorrect is upon the party challenging it. This presumption as well as the presumption under Section 103-B of the Bengal Tenancy Act relating to the correctness of the entries in the record-of-rights is a rebuttable one and to say that a comparatively recent record-of-rights would under all circumstances prevail over the old record would be begging the whole question.

8. A commissioner was appointed in this case to hold a local investigation with the following among other directions :

'(1) To go to locale.

(2) To measure the surrounding lands i.e., the lands covered by holdings Nos. 103, 104 and 105 of Mr. Smyth's plan corresponding to holdings Nos. 140, 87, 88 and 121 of Mr. Smart's plan.

(3) To relay thereon Mr. Smyth's plan, Mr. Smart's plan, Mr. Billon's plan and the c.s. map.

(4) To prepare a comparative plan to ascertain and locate the extent and position of lands covered by holdings Nos. 104 and 105 of the Smyth's survey and that of holding No. 87 of Mr. Smart's survey showing therein particularly the boundary of lands covered by holdings Nos. 103, 104, 105 of Mr. Smyth's survey corresponding to Mr. Smart's survey holdings Nos. 140, 87, 88 and 121.

(5) To report whether the land covered by holding No. 87 of Smart's survey is wrongly shown in Smart's plan as appertaining to land covered by holding No. 104 of Smyth's survey.'

The commissioner carried out these directions and prepared a comparative plan after relayment of several maps and submitted a report. The following conclusions of the commissioner are material for our purpose :

'Now from the comparative plan plate V it is clear that holdings Nos. 103, 104 and 105 of Mr. Smyth's survey taken as a whole practically cover the holdings Nos. 87, 88, 121 and 140 of Mr. Smart's survey and that holding No. 87 of Mr. Smart's survey falls outside and to the east of holding No. 104 of Smyth's survey and also that holding No, 87 of' Smart's survey falls inside and is included in holding No. 105 of Smyth's survey.'

9. Mr. Mitter contended on behalf of the plaintiff respondent that Smart's plan has been found to be inaccurate by the commissioner and the plan would appear to be self-contradictory if it is considered in the light of his Khasra Khatian, Ext 4, and if due regard be paid to the comparative plan prepared by the commissioner after relayment of the plans of Smyth, Billon and Smart. The Khasra Khatian shows that holding No. 104 (apparently of the survey of Smyth and Billon) is new holding No. 87 of Smart. The comparative plan of the commissioner shows that this can never be so, because holding No. 87 of Smart falls outside old holding No. 104 and it is a part of old holding No. 105. This last mentioned holding again is a rent free one whereas holding No. 87 of Smart as well as old holding No. 104 bears a Jama of -/6/7 pies. The Kabuliyat by which old holding No. 104 appears to have been created in 1853 in favour of one Taju Mondal would show that the Sadar Jama for this holding was -/6/7 pies (vide Ext. 9). The relayment of the several maps by the commissioner is based upon scientific survey and the correctness or accuracy of the relayment was not even challenged by the appellant in the courts below. In these circumstances the courts below were right in accepting the report and plan of the commissioner and once they are accepted, there is no escape from the conclusion that Smart's plan and Khasra Khatian in so far as they depict or show that old holding No. 104 is Smart's holding No. 87, are wrong and that in purchasing old holding No. 104 of Taju Mondal, the plaintiff respondent really purchased a portion of Smart's new holding No. 140 and the plan and Khasra Khatian of Smart being inaccurate the plaintiff respondent is entitled to claim the holding by the number of the old survey.

10. Mr. Bagchi raised a contention in this Court that the surveys of Smyth and Billon were not made by the authority of Government as provided in Section 83 of the Indian Evidence Act and so no presumption of accuracy should be made in their favour. Such a contention was never raised in the courts below. Although there are no documents in this case to show whether the survey of Smyth was made for revenue purposes and was accepted by Government as an authoritative one, there can be no question that Billon's survey was made for revenue purposes and a rent roll was prepared and maintained on the basis of that survey (vide Ext. 3 (a)). It is, therefore, too late in the day to say that no presumption of accuracy attaches to Billon's survey.

11. In the above connection Mr. Bagchi pointed out that for the purpose of ascertaining the nature and character of Smyth's survey the lower appellate court entered into a correspondence with the Director of Land Records and accepted the opinion given by the latter. Mr. Bagchi submitted that this practically amounted to reception of additional evidence, which was merely the opinion of a Goverment Officer given behind the back of the appellant. We certainly do not approve of the procedure adopted by the lower appellate court which I was improper and unwarranted by any provision of I law, but in our judgment this has not caused any real injustice to the appellant. This being the position find it being clear from Smart's Khasra Khatian that the holding purchased by the plaintiff respondent is old holding No. 104 of Billon's survey, it must be held that Smart's plan and Khasra Khatian are wrong in so far as they allotted the number 87 against the old holding No. 104. This is clearly borne out by the commissioner's comparative map which shows that Smart's holding No. 87 is to the east of, and outside the ambit of Billon's holding No. 104. In our opinion the courts below are right in holding that the identity of the disputed land should be established with reference to Billon's hold-ing No. 104 and not Smart's holding No. 87. The title of the plaintiff respondent should be declared on that footing as has been done by the Courts below. The first contention urged on behalf of the appellant, therefore, fails.

12. We now pass on to consider the other point raised in this appeal, namely, whether the claim of the plaintiff respondent is barred by limitation or adverse possession. In this connection the learned Advocates for both parties agreed that the case should be governed by Article 144 of Schedule I of the Indian Limitation Act as found by the lower appellate court, because the plaintiff never got possession of this land and the symbolical delivery of possession which was taken through the collectorate was of a wrong land. The only question which arises for our consideration in this case is what was the starting point of adverse possession in this case. Mr. Bagchi made a three-fold submission in this connection. The sale in this case took place according to the provisions of the Land Revenue Sales Act of 1859 (Act XI of 1859) as supplemented by Act VII of 1868. Mr. Bagchi contended that under these two Acts, which are to be read as one integral Act, the Collector should mention in the sale certificate the date on which the purchase takes effect as prescribed in Schedule A of Act XI of 1859. In the present case this date as mentioned in the sale certificate was 29-7-1931 (vide sale certificate, Ext. 1). The suit was originally instituted in the court of a Munsif on 18-2-1944, that is, more than 12 years after 29-7-1931. Mr. Bagchi contended that the period of adverse possession should be computed from 29-7-1931. In our judgment this contention cannot be accepted for the following reasons. The title of the auction purchaser may relate back to a date antecedent to the date of the sale by operation of law, but it would be preposterous to say that the former owner was prescribing against him even before he purchased the property.

13. The next contention urged by Mr. Bagchi in connection with the question of adverse possession was that in any event the possession of the previous owner became adverse to the plaintiff respondent from the date of the sale, that is, 22-12-1931 and the suit was instituted after 12 years from that date. In support of his contention that adverse possession must be held to have commenced from the date of the sale, Mr. Bagchi relied on the case of Baijnath Prosad v. Nursingdas, reported in : AIR1958Cal1 . (B), in which it has been held that under Article 183 of the Limitation Act the starting point of limitation for executing a decree of the High Court is the date of the passing of the decree and not the date of signing of the decree, because the right to enforce the decree accrues as soon as the decree is passed and the delayed signing of the decree is a circumstance which is irrelevant for the purpose of the starting of limitation. Mr. Mitter, on the other hand, contended that limitation or adverse possession could not possibly start before the date when the sale became final and conclusive which, in the present case, was 19-2-1932, being the 60th day from the date of sale reckoning the date of sale as the first date as prescribed in Section 27 of Act XI of 1859. In our judgment Mr, Mitter's contention is correct because although in the case of execution of a decree governed by Article 183 of the Limitation Act, the right to execute, the decree accrues contemporaneously with the passing of the decree, it cannot be said that in the case of a purchase at a revenue sale the right of the purchaser to possess the auction-purchased property accrues directly or immediately upon his auction purchase. His right accrues only after the sale becomes final and conclusive. Article 144 of the Limitation Act lays down that the period of 12 years should be computed from the time when the possession of the defendant becomes adverse to the plaintiff. In the present case such possession of the previous owner from whom the appellant claims by purchase, could never become adverse to the plaintiff until the latter was entitled to get delivery of possession of the suit land. This date was 19-2-1932 at the earliest, that is, the date when the sale became final and conclusive. The suit having been instituted on 18-2-1932, the requisite period of adverse possession was not completed and it fell short by one day. So the second contention urged by Mr. Bagchi on the question of adverse possession must fail.

14. The third and last contention urged by Mr. Bagchi on the question of adverse possession was that the plaintiff respondent is not entitled to the deduction of the period during which the suit remained pending in the Court of the Munsif, and if that deduction is not allowed the claim of the plaintiff respondent must be held to have become barred by adverse possession. It has already been said that the suit was originally instituted in the court of a Munsif on 18-2-1944, and the valuation of the suit was given at Rs. 1200/-. An objection was taken by the appellant as to the valuation of the suit and also the pecuniary jurisdiction of the court to try it. The Munsif found that the suit had been under-valued and the real valuation of the suit exceeded his pecuniary jurisdiction. Upon this finding the learned Munsif passed an order on 5-5-1945 for return of the plaint to the filing pleader for presentation in the proper court. The plaint was thereafter re-filed on the same day in the court of the learned' Subordinate Judge who finally heard it. The lower appellate court held that the time during which the suit remained pending in the court of the Munsif should be excluded for computing the period of limitation, because the suit was prosecuted there in good faith and the Munsif was unable to entertain the suit for want of pecuniary jurisdiction. Mr. Bagchi contended for the appellant that the suit had been deliberately under-valued by the plaintiff appellant without taking due care and caution, because the suit land had been valued at the same figure at which the plaintiff respondent had purchased it 12 years prior to the institution of the suit and the respondent did not take any care to ascertain whether there was any increase in land-value during the long intervening period. We cannot say that this contention of Mr. Bagchi is without any force, but the question whether the plaintiff respondent acted in good faith or not is a question of fact and as the lower appellate court has decided this question in favour of the plaintiff respondent after adverting to the evidence bearing on it, we are not inclined to allow Mr. Bagchi to raise this contention in second appeal. So all the contentions raised by Mr. Bagchi on the question of adverse possession fail.

15. Both the points raised in this appeal on behalf of the appellant having failed, this appeal is dismissed with costs to the plaintiff respondent.

B.N. Banerjee, J.

16. I agree.


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