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Mohim Chandra Deb Chowdhury and ors. Vs. Pyari Lal Das and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.213
AppellantMohim Chandra Deb Chowdhury and ors.
RespondentPyari Lal Das and anr.
Cases ReferredMir Waziruddin v. Lala Deoki Nandan
Excerpt:
assam land and revenue regulation (i of 1886), sections 63, 67, 70 - sale for arrears of revenue--adverse possessor of portion of estate, rights and liabilities of--incumbrance--limitation act (ix of 1908), schedule i, articles 121, 142, applicability of. - .....secondly, whether the plaintiffs' claim is barred by the statute of limitation. section 63 says: 'land revenue payable in respect of any estate shall be due jointly and severally from all persons who have been in possession of the estate or any part of it during any portion of the agricultural year in respect of which that revenue is payable. ' it has been found as a fact that the land in question was part of the estate which was sold by the government in respect of the arrears of revenue. but it was alleged by the learned vakil for the appellants that it was held by the defendants as appertaining to another estate and not to the estate which the government was selling. i ought to have mentioned that the defendants' claim to the title to this land was based upon adverse possession for.....
Judgment:

Lancelot Sanderson, C.J.

1. This is a case in which we had the benefit of a very able and learned argument on behalf of the appellants, but I do not think myself that there is very much difficulty in the case: and, further than that, I think it is directly covered by authority. In the Court of first instance the suit was dismissed. The learned Judge of the first Appellate Court decreed the suit, and Mr. Justice Sharfuddin affirmed that judgment.

2. The suit was brought for possession of certain land. The plaintiffs bought at a sale held by the Government for arrears of revenue. The material dates were as follows: the sale was on the 7th of September 1895; the sale was confirmed on the 22nd of November 1895; the certificate was granted on the 8th of October 1896, and symbolical possession was given to the plaintiffs on the 22nd of July 1897. The suit was brought on the 22nd of July 1909, just within twelve years after the date when symbolical possession was given to the plaintiffs.

3. Two points arise in this case: the first one, upon the meaning of Section 63 of Regulation I of 1886 (the Assam Land and Revenue Regulation, 1886), and secondly, whether the plaintiffs' claim is barred by the Statute of Limitation. Section 63 says: 'Land revenue payable in respect of any estate shall be due jointly and severally from all persons who have been in possession of the estate or any part of it during any portion of the agricultural year in respect of which that revenue is payable. ' It has been found as a fact that the land in question was part of the estate which was sold by the Government in respect of the arrears of revenue. But it was alleged by the learned Vakil for the appellants that it was held by the defendants as appertaining to another estate and not to the estate which the Government was selling. I ought to have mentioned that the defendants' claim to the title to this land was based upon adverse possession for more than twelve years. Now, as I have said, it has been found that the land in question was part of the estate which had been sold and it cannot be denied that the defendants were also in possession of that part of the estate, and they were in possession of that part of the estate by reason of the adverse possession which they had had for over twelve years.

4. Now, having regard to what was said by the learned Vakil in his argument, viz., that if we were to decide this case in favour of the plaintiffs, we should be deciding that the ordinary occupancy tenant could be liable for the revenue, I wish to say quite distinctly that I am now deciding this case upon the facts of this case, not intending to cover any other case of different facts. The facts are that the defendants were in possession of the property, claiming to be owners thereof by reason of adverse possession for more than twelve years. Now, as I read this section, the intention of the Legislature was that Government or the Revenue Department should not have to go hunting up and down the country the persons who are liable to pay revenue, and, therefore, they provided that the revenue should be paid by all persons who have been in possession of the estate or any part of it during any portion of the agricultural year in respect of which that revenue is payable. As I have said, it has been found that the property in question was port of the estate which was sold, and it cannot be denied that tie defendants were in actual possession. To my mind, the cafe clearly comes within the meaning of that section and consequently the defendants become defaulters by reason of Section 67, which says: 'Land revenue not raid on the date when it falls due shall be deemed to be an arrear; and every person liable for it shall be deemed to be a defaulter. ' I do not really think that I should have taken the trouble to express my judgment at such length, except out of deference to the argument of the learned Vakil, for, I think, the case is covered by the decision of my learned brothers Mr. Justice Mookerjee and Mr. Justice Richardson in the case of Aftar Ali v. Brojendra Kishore Roy 37 Ind. Cas. 252 ; 24 C.L.J. 60, which is unreported and which was referred to by my learned brother Mr. Justice Mookerjee during the course of the argument; and it is in accordance with the conclusion at which I have arrived. The defendants being defaulters within the meaning of Section 67, their interest in the land, which they had acquired by adverse possession was liable to be sold under Section 70 of the same Regulation and that being so, their title and interest passed to the plaintiffs who were purchasers at that sale. That disposes of the first point.

5. The only other question is, whether the suit was brought within the time given by the Statute of Limitation. There again, this matter is covered by authority, provided that the defendants were defaulters within the meaning of Section 67. That authority is the case of Mozuffer Wahid v. Abdus Samad 6 C.L.R. 539. The head-note there is as follows: 'Where land is sold under Act XI of 1859 for arrears of Government revenue, the purchaser, who has been put in symbolical possession by the proclamation of the Collector, is entitled to sue for actual possession of the land within twelve years from the date of such symbolical possession. ' That exactly covers the point in this case. The reason upon which that judgment was based is to be found at the bottom of page 541, where it is said: 'Under the' Act the Collector was directed, in a certain case, to give possession by proclamation. He did in this case, by proclamation On the 3rd August 1864, give possession to the plaintiffs, and on the authority of the case quoted and upon general principles, we are of opinion that the proclamation was an act of possession by the plaintiffs, and that they are entitled to date their suit from the 3rd August 1864, and that inasmuch as they instituted their suit on the 17th July 1876 they are in time. ' Substituting the dates in this case for the dates which are given in the decision which I have just read, that is an authority directly in point, and I intend to follow that authority and to hold that as long as the suit was brought within twelve years from the date upon which the Collector gave symbolical possession to the plaintiffs, the suit is brought within time. Inasmuch as it is not disputed that it was on the 22nd of July 1897 that the plaintiffs got symbolical possession and the suit was brought by them on the 22nd of July 1899, just within the twelve years, I think the suit was in time.

6. For these reasons I think the appeal should be dismissed, but without costs, no one appearing for the respondent.

Mookerjee, J.

7. I agree that the decree awarded to the plaintiffs by the Subordinate Judge, which has been affirmed by Mr. Justice Sharfuddin, cannot be successfully assailed.

8. The plaintiffs seek to recover possession of the disputed land, on the strength of title by purchase at a sale for arrears of revenue held on the 7th September 1895 under Section 70 of the Assam Land and Revenue Regulation, 1886. Under Section 80, the sale became final on the 5th November 1895, though it was not confirmed till the 22nd November 1895. The sale certificate was granted on the 8th October 1896 and possession was delivered to the purchaser under Section 85, on the 22nd July 1897. On the 22nd July 1909, the plaintiffs instituted this suit to recover possession of the land from the defendants on the allegation that it was comprised in Taluk Shibaram purchased by them on the 7th September 1895. The defendants resisted the claim on the ground that the land was comprised in their Taluks Durgaram and Adamraja and had been in their occupation, from a time long anterior to the revenue sale of Taluk Shibaram, which was the root of the title of the plaintiffs. They also pleaded that the suit was barred by limitation. The Court of first instance dismissed the suit, upon appeal the Subordinate Judge decreed the suit in part, that is, in respect of lands found to have been included in Taluk Shibaram; and his decree has been affirmed by Mr. Justice Sharfuddin.

9. On the present appeal, the defendants have contended that the suit is barred by limitation under Article 121 of the Schedule to the Limitation Act, inasmuch as they had been in adverse possession of the decreed lands for the statutory period, on the assertion that the lands were included in their property. Article 121 provides 'that a suit to avoid incumbrances... in an entire estate sold for arrears of Government revenue' must be instituted within twelve years from the date when the sale becomes final and conclusive. ' The contention of the appellants in substance is that as the sale became final and conclusive on the 5th November 1895, the present suit, instituted on the 22nd July 1909, is barred by limitation. This raises the question of the status of the defendants and the effect of the revenue sale on their rights. Mr. Justice Sharfuddin, in concurrence with the Subordinate Judge, has held that the effect of the adverse possession of the defendants, which had lasted for a period of more than twelve years before the date of the revenue sale, was to constitute them joint proprietors of Taluk Shibaram; they were consequently in the position of defaulting proprietors, whose interest was swept away by the revenue sale. This conclusion has been controverted by the appellants, who have argued that by adverse possession they had acquired the status merely of encumbrancers whose interest could be annulled only within twelve years from the date when the sale became final. In support of this contention, reliance has been placed upon the case of Gokul Bagdi v. Debendra Nath Sen 11 Ind. Cas. 453 ; 14 C.L.J. 136, where the meaning of the term 'encumbrance', as used in various Statutes, more or less analogous to the Assam Land and Revenue Regulation, 1886, was discussed, as also to the decision in Mahomed Nasim v. Kasi Nath Ghose 26 C. 194 ; 3 C.W.N. 108 ; 13 Ind. Dec. (N.S.) 29, where the effect of a sale for arrears of revenue under the Regulation was considered. In my opinion the contention of the appellants is not well founded. The effect of the adverse possession of the defendants was, under Section 28 of the Limitation Act, to extinguish the interest of the proprietors of Taluk Shibaram in the disputed land upon the expiry of the statutory period. The defendants thus acquired the proprietary interest in Taluk Shibaram with regard to the disputed land, although they professed to hold the land as an integral part of their property: Gossain Das Chunder v. Issur Chunder Nath 3 C. 224 ; Ind. Dec. (N.S.) 731; Jagrani Bibi v. Ganeshi 3 A. 335 ; A.W.N. (1881) 9 ; 5 Ind. Jur. 652 ; 2 Ind. Dec. (N.S.) 219. In this view, the defendants were persons in possession of the Taluk Shibaram and were jointly liable to pay the Government revenue therefor. This follows from a plain reading of Section 63, which provides that 'Land revenue payable in respect of any estate shall be due jointly and severally from all persons who have been in possession of the estate or any part of it during any portion of the agricultural year in respect of which that revenue is payable. ' We are invited to place a narrow construction upon this section and to restrict its application to cases where the person in possession professes to hold the land as included in that estate. But I cannot read into Section 63 words not to be found there, and I am not prepared to adopt the narrow construction put forward by the appellants. The result would be obviously anomalous, if that interpretation were accepted in the case where a proprietor of an estate might be dispossessed of all the lands of the estate; the consequence would be that though a person might be in adverse possession of the entire estate and might, by lapse of time, acquire a proprietary interest in that estate, yet he would not be liable for payment of Government revenue. This unquestionably would not be consistent with the rules of justice, equity and good conscience. If we next turn to Section 67, we find that Land revenue not paid on the date when it falls due shall be deemed to be an arrear; and every person liable for it shall be deemed to be a defaulter. ' Consequently, the effect of the adverse possession of the defendants was to constitute them joint proprietors of Taluk Shibaram. It follows, as a necessary corollary, that with the acquisition of that right, they also incurred the corresponding liability, namely, to pay Government revenue. This is the view which has been adopted by this Court in the cases of Aftar Ali v. Brojendra Kishore Roy 37 Ind. Cas. 252 ; 24 C.L.J. 60 and Jitendra Kumar Pal v. Mohendra Chandra Sarma 37 Ind. Cas. 239 ; 24 C.L.J. 62. It may be added that a similar view had been previously adopted with regard to the Bengal Revenue Sale Law (Act XI of 1859) in the cases of Kumar Kalanand Singh v. Syed Sarafat Hossein 12 C.W.N. 528, Rahim-ud-din v. Bhabangana Debya 1 Ind. Cas. 81 ; 13 C.W.N. 407, Baikuntha Nath Rai v. Basanta Kumari Dasi 34 Ind. Cas. 946 ; 23 C.L.J. 151. The case of Mahomed Nasim v. Kasi Nath Ghose 26 C. 194 ; 3 C.W.N. 108 ; 13 Ind. Dec. (N.S.) 29 is plainly distinguishable. That case is authority only for the proposition that the interest acquired by a subordinate tenure-holder, in respect of lands not comprised in his tenure but annexed thereto by encroachment, is that of an encumbrancer; but it would be clearly inappropriate to describe as an incumbrancer a person who has acquired the status of a proprietor of an estate. I hold accordingly that the defendants were joint proprietors of the taluk purchased by the plaintiffs, that they were defaulters, and that they held no incumbrance which the plaintiffs were called upon to annul by the institution of a suit within the period prescribed by Article 121.

10. The question next arises, by what Article of the Limitation Act is the suit governed? It is plain that the rule applicable is embodied in Article 142. Possession was delivered to the purchasers on the 22nd July 1897; as the defendants did not quit the land, they must be deemed to have dispossessed the plaintiffs on that date, so that time ran against the respondents from then and not earlier. This view is supported by the decision in Mozuffer Wahid v. Abdus Samad 6 C.L.R. 539, which was decided in 1880 and has been accepted as good law ever since: Mir Waziruddin v. Lala Deoki Nandan 6 C.L.J. 472. I am not prepared at this distance of time to question its correctness or to treat the matter as res integra. It is plain that the question of limitation is concluded by authority, while the question of title is concluded by the concurrent findings of the lower Courts. The appeal must consequently be dismissed.


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