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Mahomed Mobaruck and ors. Vs. Joytara Dassee and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1882)ILR8Cal976
AppellantMahomed Mobaruck and ors.
RespondentJoytara Dassee and ors.
valuation of suit - decree, form and contents of--variance between pleading and proof--ejectment, suit for--possession--thak maps--evidence. - .....of the defendants, their ancestors, and predecessors; and that the plaintiffs have never had any title or possession therein. the written statement of the defendants then further avers that the quantity of land has been largely overstated in the plaint: and it gives in a schedule the boundaries of the land as stated by the defendants, who further say that the first plot contains 500 hals only, and the second plot 125 hals, or 25 hals more than is stated in the plaint.3. the issues fixed by the subordinate judge, who tried the case, are the following:(1) whether the lands under claim had been properly valued(2) whether the boundaries and quantity of land have been correctly stated(3) whether the plaintiffs were in possession of the lands in dispute, and were dispossessed therefrom at.....

Field, J.

1. The plaintiffs in this case sue to recover possession of 950 hals of land, consisting of two plots. Plot No. 1, according to the allegation contained in the plaint, comprises 850 hals, and is said to form the southern portion of Thak No. 2527, and to be known as Mouza or part of Mouza Rautpara. Plot No. 2 comprises 100 hals, and is said to form the southern portion of Thak No. 2581, and to constitute the Mouza or part of Mouza Bhoti Dowlutpore. The plaintiffs' case is, that these two plots and these two mouzas appertain to Taluk Mahomed Amzad and are their property, and they allege that they have been in possession thereof. The plaint does not set out the title of the plaintiffs in this property or the manner in which they came to acquire that title. With the plaint two thak maps were filed. One of these is the thak map of Gungadhurpore, and is apparently undated. The other is a thak map of Mouza Dowlutpore, and bears date 1861. The plaint gives no boundaries of these two plots of land; but certain portions thereof are described to a certain extent. One portion under the Bengali letter ka=(k) is said to consist of lands against the tenants of which the plaintiffs obtained decrees, and these lands are described by plots and boundaries of those plots as held by certain tenants whose names are given. The other portion under the Bengali letter kha=(kh) is said to consist of lands which were in the possession of Kali Charan and Sunatun Das, and against whom also the plaintiffs are said to have obtained decrees. Of the rest of the land there is no particular description beyond the reference to the thak maps filed with the plaint.

2. The defence is, that the first plot of land appertains to Taluks No. 12, Anund Roy, No. 13, Hulas Roy, No. 14, Shib Roy, No. 36, Krishna Prosad, and No. 4, Rajbullubh, in Mouza Coyahara; and that the lands of Plot No. 2 appertain to Taluk No. 33, Bhelanugur, Kitta Anundpore, in Mouza Dowlutpore; that there is no such mouza as Rautpara or Bhoti Dowlutpore; that the lands referred to in the plaint have really been the property of the defendants, their ancestors, and predecessors; and that the plaintiffs have never had any title or possession therein. The written statement of the defendants then further avers that the quantity of land has been largely overstated in the plaint: and it gives in a schedule the boundaries of the land as stated by the defendants, who further say that the first plot contains 500 hals only, and the second plot 125 hals, or 25 hals more than is stated in the plaint.

3. The issues fixed by the Subordinate Judge, who tried the case, are the following:

(1) Whether the lands under claim had been properly valued

(2) Whether the boundaries and quantity of land have been correctly stated

(3) Whether the plaintiffs were in possession of the lands in dispute, and were dispossessed therefrom at the time alleged, or the defendants having been in possession thereof from before, the suit is barred by limitation?

(4) Whether the lands in dispute appertain to the mouza and taluk mentioned by the plaintiffs and belong to them, or to the mouza and taluk mentioned by defendants and belong to the latter (defendants)

4. Now, the first of these issues is not an issue which ought to have been fixed for the trial of the case. It deals with a question of valuation, which is a preliminary question that ought to be disposed of before the case can or ought to go to trial. As to the second issue, it is impossible that the Subordinate Judge could have read the plaint when he fixed this issue, because the plaint does not give, or purport to give, the boundaries of the two parcels of land. The third and fourth issues are faulty, inasmuch as they are in that alternative form which has been repeatedly pointed out by this Court to be erroneous and misleading. When the Subordinate Judge came to deal with these issues, he found that, in consequence of there being no boundaries in the plaint, it was not possible for him to come to a categorical finding upon the second issue; and by way of getting over the difficulty, he took the boundaries given by the defendants and proceeded to deal in his judgment, not with the land as described in the plaint by the plaintiffs, but with the land as described in the written statement by the defendants. Referring to the map he says: 'I find no difficulty in ascertaining the identity of the lands, inasmuch as the numbers of the thaks have been mentioned in the plaint and the maps thereof have been filed.' The difficulty which the Subordinate Judge did not experience has formed a very considerable difficulty both to the Judges of this Court and to the Counsel who have argued the appeal, inasmuch as by a mere inspection of the maps it is not possible to identify the land, either as described by the plaintiffs, or as described by the defendants, with any superficial area upon these maps. As a necessary consequence of adopting the boundaries given by the defendants, the Subordinate Judge was forced to hold that the quantity of the land comprised in the first parcel was not 850 hals as stated by the plaintiffs, but 500 hals as stated by the defendants; and that the quantity of land in the second parcel was not 100 hals, but 125 hals. Upon the merits of the case, the Subordinate Judge came to the conclusion that the title to the land comprised in both parcels was in the defendants, but he was of opinion that the plaintiff's had been in possession for over twenty years, and that by such possession they had acquired a title which must be held to override and destroy the title which he found to be in the defendants. He says in one part of his judgment: 'In this case, there being satisfactory evidence of long possession on the part of the plaintiffs and no or doubtful proof on the part of the defendants, I am extremely sorry to say that although there is satisfactory evidence of title on the part of defendants, still they are not entitled to reap the benefit of this case.' And further on, after considering the evidence, he thus expresses himself in conclusion: 'Considering all these circumstances, I come to the conclusion that the plaintiff's and their predecessors had been in possession of the disputed properties for twenty years and upwards; that they were dispossessed in the manner aforesaid in the year 1281; and that, by virtue of the excellent title that accrued to them by possession, they are entitled to recover possession.' He therefore decided the case and made a decree in favour of the plaintiffs. That decree is in the following form: Mokuddma decree hoy. (The case is decreed.) Now, what the mokuddma was which was decreed it is not very easy to say. It certainly is not the case made by the plaintiffs, for, as we have already seen, be abandoned the quantity and description of the lands given by the plaintiffs, which description gave no boundaries, and he accepted the quantity and description given by the defendants. If the Subordinate Judge means to give a decree for the quantity of land stated by the defendants, he has given the plaintiff's in respect of the second parcel more land than they have claimed in their plaint. We think that it is not creditable to the Subordinate Judge that a decree of his Court in an important case like this should be drawn up in a form animadverted upon and condemned by a Circular Order of this Court dated so far back as 19th July 1867. In that Circular Order clear instructions were given to the lower Courts as to the preparation of their decrees in accordance with the requirements of the Code of Civil Procedure so as to make those decrees self-contained and capable of execution without reference to any other documents. The fulfillment of this duty is incumbent upon every Court of Justice, and any Judicial Officer who neglects it fails in the discharge of an important public function. Against this informal decree an appeal has been preferred by the defendants; and the points which have been argued before us are briefly as follow: First, it is said that as the plaint contained no boundaries, the case ought to have been dismissed; and that the decree in the form in which it has been drawn is absolutely incapable of execution, inasmuch as it is impossible for an Ameen or other officer of the Court to take that decree, proceed to the spot, and identify the land, the possession of which is thereby directed to be given to the plaintiffs. Secondly, it is contended that the plaintiffs did not set up any title acquired by twelve years' possession, and that the Subordinate Judge has, in consequence, decided the case upon a point not raised in the pleadings, and which has necessarily taken the parties by surprise. Thirdly, it is said that the possession of the plaintiff's has not been proved.

5. Now, as to the first of these points, we think there can be no doubt that the decree in its present form is incapable of execution, and if we were about to deal with this appeal upon this first point only, it would be necessary to remand the case in order to have a proper decree drawn up.

6. Then, as to the second point, we think there can be no doubt, and indeed the learned Counsel, Mr. Bell, in his argument, very properly admitted, that the plaintiff's did not make in their plaint any alternative title based upon a twelve years' possession. They do, indeed, say that they were in possession of the land, but they do not say that they were in possession for twelve years, or 'from before,' or 'for a long time;' nor do they use any of those other general expressions which are to be found in plaints in this country, and which are at times argued to convey to the party, on the other side, the meaning, that the plaintiff relies upon an undisturbed possession for more than twelve years. This being so, it appears to us that it is impossible to uphold a decree which is based upon a title not stated by the plaintiffs in their plaint, and as to which no issue was framed for trial in the Court below. Cases must be tried and determined secundum allegata et probata, and it is contrary to this principle, and may be fraught with injustice, to decide a cause upon a point not raised in the pleadings, nor embodied in an issue, and to which, in consequence, the attention of the parties was not directed at the trial so as to enable them to produce all the evidence relevant thereto which was available to them. Then, as to the plaintiffs' title, we have already pointed out that they do not set forth in their plaint any specific title, and that the only title upon which they can be supposed to rely is a title based upon the two survey maps. The survey map of Dowlutpore gives as the western boundary of this Mouzas Gungadhurpore and Rajapore. It does not mention any Mouza Rautpara on the west, but the plaintiffs' case is that the whole of Thak No. 2527 comprises three mouzas, Gungadhurpore, Rajapore, and Rautpara; and they rely upon the map of Gungadhurpore in support of this case. Now, in the first place, the two maps do not agree. If Rautpara were where the plaintiff's place it,--i. e., in the south of Thak No. 2527, it ought to appear upon the Dowlutpore map, which it does not. Then, when we examine the map of Gungadhurpore, it appears to us that this map is, on the face of it, imperfect and unreliable. There is, on the original map, or report of the officer in whose charge or custody the map may be supposed to have been, that this original map contained erasures and alterations. The map is, as we have already said, not dated. Then, as to the boundaries of the adjacent Mouzas Enatnagur, Kalargoon, and Joynabad, it is clear that the boundaries as shown on the map do dot agree with the stations as given in the schedule at foot. There is in the column 'Remarks' the following observation: 'Be it known that, on the confines of Mouza Sarippore, No. 2528, some of the stations having been excluded on behalf of defendants in pursuance of orders, the three sides do not agree with the boundaries.' This observation goes to show, that the map is not a correct reproduction of the locality and the true boundaries of estates. Then, neither of these maps contains any natural landmarks with reference to which the position of the parcels may be ascertained upon a local investigation, and finally no local investigation has been made, or was, indeed, applied for. The Subordinate Judge takes certain boundaries for example: Bhosachura Khal, which he finds to be on the north of Plot 1, and Dojana Dabi, which he finds to be on the north of Plot 2; but these natural boundaries are not shown on the maps, and it is not contended that there is any evidence upon the record by means of which we may identify any places upon the map with these two natural landmarks. Under these circumstances it appears to us that these maps are absolutely useless as evidence of a title in the plaintiff's.

7. We then come to the third question, which is concerned with the plaintiff's possession. The learned Counsel Mr. Bell, contended, that although the plaintiffs have not set up an alternative title acquired by possession for twelve years, yet the decree of the lower Court can be supported upon the ground that the plaintiff's have proved an undisturbed and undisputed possession in themselves; and that, as against the defendants, who are wrong-doers, such possession entitles them to recover; and he contended that, even without proof of twelve years' undisturbed possession, the plaintiffs are entitled to a decree merely upon the finding of the Subordinate Judge in respect of possession. This raises an important and a difficult question which we think, however, that it will not be necessary for us to determine upon the present occasion. If in our opinion the plaintiffs had proved their undisturbed and undisputed possession of this property, we feel bound to say that we would have had hesitation in accepting the finding of the Subordinate Judge upon the question of title of the defendants. That finding is based upon three documents, which are some hundred years old. We think we ought to point out that there is no evidence of the custody of these instruments. There is no evidence that the defendants in the present case derive title from the persons in whose favour these instruments were executed; and further we should have considerable difficulty in accepting the reasoning of the Subordinate Judge by which he has satisfied himself that the lands, which form the subject of these instruments, are identifiable with the two parcels of lands which form the subject of the present suit. The question whether a plaintiff in ejectment is entitled to succeed upon mere proof of antecedent undisturbed possession in himself is one upon which the Judges of this Court are perhaps not quite unanimous in their opinion, and it may be that, at some future time, this question will have to be laid before a Full Bench. In the case now before us we think that the plaintiffs have not succeeded in proving an antecedent undisturbed possession before the year in which they say that they were dispossessed by the defendants. In the first place, if we consider the thak maps as evidence of possession, they are open to the following observations: There is nothing to show that the persons whose names are entered in these maps as in possession are the predecessors in title of the present plaintiffs only. In the second place, it is not possible to identify on these maps the land in dispute with the land as described either in the plaint or in the written statement. In the third place, the map of Gungadhurpore is, on the face of it, imperfect and unreliable as already pointed out. In the fourth place, these maps are not signed by the proprietors or their agents, as is usual in the preparation of thak maps of the Government survey; and lastly, as appears from the field-book, to be found at page 11 and following pages of the paper-book, nearly the whole of the land so thaked was at the time jungle. Now, thak maps are, as has been pointed out in many decisions of this Court, good evidence of possession; but the value of that evidence varies enormously. In the case of a thak map containing definite landmarks and undisputed boundaries signed by the parties or their accredited agents, and representing land which has been brought under cultivation, and is in the possession of ryots whose names are known or can be discovered from the zamindari papers, a thak map is very valuable evidence of possession. But the value of such a map is greatly diminished when we find that there are no natural landmarks delineated thereupon; that the land was jungle when measured; that the boundaries are not discoverable from a mere inspection of the map; and that neither the zamindars nor their agents have, by their signatures, admitted the correctness of the thak. The latter is the condition of the maps in the present case, and we think that, for the purpose of proving the possession of the plaintiff, these maps are useless, more especially as no attempt has been made by a local inquiry and measurement to identify the area of the maps with the locality. Turning then to the other evidence which is to be found in the case, we may first refer to three measurements which are said to have been made by the plaintiff's at various times. The measurement papers have been filed, but as to these three measurements the same remarks are applicable, viz., that there is no evidence which connects these papers with the lands which form the subject of the present suit. No ryots have been called who prove that they hold and pay rent to the plaintiffs for lands which can be identified as the lands shown in these measurement papers. We think, therefore, that the case of the plaintiffs does not derive any support from these measurements. Then, coming to the oral evidence, the testimony of all the witnesses is general in the extreme. They speak of the 'disputed land.' They say that they saw plaintiff's 'in possession.' They say they saw them 'collecting rents.' All these statements are general. And to persons who have had any experience in the mofussil, and who know how easy it is to bring any number of witnesses into Court, who will readily give general testimony of this nature, the absolute worthlessness of such evidence requires no demonstration. Then, as to the persons who are said to have collected the rents, there are irreconcilable discrepancies as to the periods during which they made those collections, and as to the order in which they succeeded one another in the discharge of this duty. Lastly, it is admitted by the plaintiffs' own witnesses, that three-fourths of the land is waste; and there is no evidence whatever to show acts exercised by the plaintiff's over these waste lands from which a Court of Justice can draw the inference that the plaintiffs were in possession. In respect of the lands that are said to have been under cultivation, the tenants in possession have not been called to prove that they paid rent to the plaintiffs for any land which can be identified with the land which forms the subject of the present suit. Under those circumstances we think it impossible to say that the plaintiff's have succeeded in proving an antecedent undisturbed possession of the whole of the land as described in the boundaries given in the defendants' written statement, or of any portion of it which can be identified by boundaries or otherwise so as to describe it with reasonable accuracy in the decree. The learned Counsel for the respondents has asked us to remand this case in order that there may be a local enquiry; and he has urged upon us, that if there is a proper local enquiry made by a duly qualified Ameen, it will be possible to identify the lands which form the subject of this litigation with lands to be found in the locality. We are well aware of the difficulties which the learned Counsel has had to contend in arguing a case which has been so badly prepared, so badly brought into Court, and so badly tried as this case has been; but we think that this is an application to which we ought not to accede. The plaintiff's did not apply to the Subordinate Judge to have a local investigation made. Had they done so, and had that local investigation proved to be unsatisfactory or infructuous in consequence of the incompetency of the officer who made it or for other causes, we think that we might fairly be asked to grant a remand; but seeing that the plaintiff's did not ask for a local enquiry, we must presume that they or their advisers did not think that the evidence to be derived from this particular mode of proceeding would have benefited their case. Under these circumstances we are unable to comply with the request of the learned Counsel to remand this case for a local enquiry. The result is, that this appeal must he decreed, and the plaintiff's case dismissed with all costs of both Courts.

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