1. The plaintiff Tara Prasanna Roy Barman sued for a declaration of his title to the lands in Schedule 1 of the plaint and for possession on partition. He alleged that the lards which were situated in Mouza Tegharia belong to three taluks, being Nos. 1, 2 and 3, in equal shares, and that his father Ram Tarak obtained a patni lease in 1300 B. Section of the interest of Hoormatjan Bibi, who was the 16 annas owner of taluks Nos. 1 and 2, and had a one-third share in taluk No. 3 along with the Jalsuka and Mallikpore Estates who had the remaining shares. By mistake the lands were described in the patni as appertaining to taluk No. 10 of Nijgaon, but nothing now turns on this error. Ram Tarak who was the local sub-registrar constructed a basha on the lands of Schedule 2 (part of Schedule 1) and brought some of the remaining land under cultivation through tenants. Soon after the patni, however, he was transferred and the earthquake of 1304 B.S. occurred, so that the basha fell into the ruins; a large part of the land was patit, but his tenants continued to posses the land for some time. Thereafter defendants 24, 25 and 51 erected bashas in the-lands of Schedule 2, and Ram Tarak on learning of this brought suits against them in 1909 for declaration of title and ejectment. He finally lost those suits in 1915. The plaintiff further alleged that defendants 31-33, 39-42 and 44-48 had been erecting bashas in some portions of the lands of Schedule 3 (being part of the lands of Schedule 1) on taking settlement, that these defendants and defendants 34-38 and 43 had taken settlement from defendants 1-3 and from the predecessor of defendants 12-15 who-had given the settlements alleging that they had themselves taken a patni settlement from their father Dewan Hasan Reza Choudhury, son of Hoormatjan Bibi. The plaintiff alleged that the construction of these bashas had begun some 6 or 7 years prior to the suit. He alleged as his cause of action that he had been deprived of his right to-exercise acts of possession in the lands of Schedule 2 by the suits of 1909 and that he had been dispossessed of some of the lands of Schedule 3 as just stated above, and further that his possession of the remaining lands of Schedule 1 had been clouded by the leases. The suit was contested mainly by the heirs of Hoormatjan Bibi and principally by defendant 2, Dewan Aptabar Raja Choudhury, her grandson. Four main points arose for decision, (1) whether the patni of 1300 to Ram Tarak was collusive or not; (2) whether Ram Tarak had abandoned the lands of his patni, (3) whether the plaintiff's claim was barred by adverse possession and (4) whether on an exchange in 1301 Hoormatjan Bibi had obtained all the lands of taluq No. 3, the Jalsuka and Mallikpore estates getting lands elsewhere. The trial Court found the first three points against the plaintiff and dismissed his suit; it was not necessary for it to decide the fourth but in fact it decided that in case of partition the Julsuka estate would get its share according to its interest. The plaintiff appealed and his brothers who had been made defendants 49 and 50 supported his contentions in a separate appeal. The lower Appellate Court found the first three points in favour of the plaintiff and gave him a decree accordingly. It saw no reason to differ from the decision of the trial Court on the fourth point giving as its reason that the defendants concerned had filed no appeal and no cross-objection.
2. Defendants 2, 3, 41, 52 now appeal in now appeals, the grounds being identical. No contention is now advanced that the patni to Ram Tarak was a collusive document, but the questions of abandonment and adverse possession are pressed. It is also urged that as the lower Appellate Court gave a decree for partition it should have discussed the fourth point. It was also pointed out that in the trial Court there had been some dispute as to what portion of the suit land was included within taluks Nos. 1, 2, 3 and that the plaintiff had agreed to treat the land of the patta as shown by him to the Commissioner within the thak lines, as the land in suit, and to confine his remedies thereto. This small refinement has been overlooked by the lower Appellate Court in its decree. Adjustment will be required and this is conceded here for the plaintiff, respondent.
3. The main contention pressed before us by Dr. Basak appearing for the defendants-appellants is that this is a case of possession and dispossession under Article 142 of Schedule 1, Limitation Act, 1908, and that it is for the plaintiff to show that he was in possession of the lands in suit within 12 years, whereas the learned District Judge has considered only the question whether the defendants have proved adverse possession for more than 12 years treating the case as one under Article 144 of that Schedule. It is also urged on the authority of Rakhal Chandra Ghose v. Durgadas Samanta (1922) 9 A.I.R. Cal. 557 that as the learned District Judge has found that the plaintiff's evidence of possession is unsatisfactory the plaintiff cannot fall back upon the doctrine that possession follows title in the case of waste lands, a doctrine which seems to be contended for as the 'rule of patit' in the plaint. Mr. Atul Gupta for the plaintiff contends that, as it appears that a large portion of the suit lands is patit, the plaintiff is entitled to this presumption. A proper decision of the point involves examination of the facts in the light of the correct view of the law applicable. It will be necessary, we think, to remand the case to the lower Appellate Court for such a decision. Treating the case as one under Article 142 it will be determined whether having regard to the evidence as to the nature of the lands and the possession the plaintiff has been able to establish, actual or constructive possession within the statutory period. The lands of Schedule 1 include those of Schedule 2 and 3 and it is to be noted that there is some distinction respectively as regards the lands of Schedule 2, those of Schedule 3, and those of the residue of the lands in Schedule 1. As regards the lands of Schedule 3 the plaintiff admits possession of certain o the defendants, but not as regards the residue. As regards the lands of Schedule 2 the decisions in the suits of 1909 have to be considered. The plaintiff's father there sued for declaration of title to and for ejectment in respect of the lands of Schedule 2, and his suits were dismissed. He was given no declaration as to title on the ground that he had not given evidence to show what was the share of Hoormatjan. As regards ejectment it was held that as the defendants had been inducted on the lands by a cosharer and as the plaintiff's father was admittedly in possession of the whole of the plot of which he took settlement except the lands then in suit, and further that as he had practically relinquished those lands after the earthquake he could not be allowed to eject the defendants. It is contended that the effect; of these decisions was merely that the plaintiff's father was not entitled to possession in these lands except for the purposes of claiming a partition, and this seems to be the correct view. The special circumstances of these lands will then have to be considered in the light of the decision as to the other lands now in suit. As regards the fourth relating to the question of the shares of the estates, the trial Court discussed the matter in connexion with issues 3, 10, 11, 12, 13, none of which has any concern with it, and the Court came to a finding that in the circumstances it could not 'count much on the benimay patra' and that therefore in case of a partition the Jalsuka estate would get share according to its interest. Then at the end of its judgment in discussing issue 15 which raised the questions whether there should be a partition, and if so whether the Gouripore and Jalsuka estates would get Sahams, it found:
There would not accordingly be any decree for partition. The other portion o the issue doss not arise;
and overlooked the fact that it had already decided the point. As the plaintiff's case was dismissed in its entirety there was no requirement for any defendant to file any appeal or cross-objection and thus the only reason given by the lower Appellate Court for not differing from the view of the trial Court on this point was a wrong reason. It will be necessary, therefore, for the lower Appellate Court to determine this point also on remand. The result is that these appeals are allowed; the decree of the lower Appellate Court is set aside, and the case is remanded to that Court for a re-hearing of the appeal and for disposal of the case according to law in the light of this judgment. Future costs will abide the result. There will be no order as to costs in this Court.
B.K. Mukherjea, J.
4. I agree.