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Mohunt Krishen Doyal Gir Vs. Irshad Ali Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.965
AppellantMohunt Krishen Doyal Gir
Respondentirshad Ali Khan and anr.
Cases ReferredDinomoni Chowdhrani v. Brojo Mohini Chowdhrani
Excerpt:
bengal revenue sales act (xi of 1859), section 33 - revenue sale of estate not in arrear, effect of--suit for recovery--limitation--letters patent, section 15--judgment meaning of--criminal procedure code (act v of 1898), section 145, order under, admissibility of evidence--admission, value of--limitation act (ix of 1908), scheduled i, article 142--civil procedure code (act v of 1908), section 98--appeal--difference of opinion on some points--practice. - lawrence jenkins, c.j.1. this suit was instituted by mohunt krishna doyal gir against irshad ali khan and ali nabi, and by the plaint a declaration is sought that the plaintiff is owner of 13 annas of haria asli mai dakhili, pargana shergati under kobalas dated the 21st february 1888 and 21st february 1889, and under an ijara of 12th march 1889 and a kobala of the 25th july 1904 is owner of 1 anna 6 dams and 5 cowris and ijaradar of 1 anna 13 dams 15 cowris. in other words, he seeks to establish his present right to 16 annas in one capacity or the other and on the strength of this he prays that his possession of the 16 annas may be confirmed or restored to him. this suit was heard by the subordinate judge, first court, gaya, by whom it was dismissed. the appeal was heard by n. chatterjea.....
Judgment:

Lawrence Jenkins, C.J.

1. This suit was instituted by Mohunt Krishna Doyal Gir against Irshad Ali Khan and Ali Nabi, and by the plaint a declaration is sought that the plaintiff is owner of 13 annas of Haria asli mai dakhili, Pargana Shergati under kobalas dated the 21st February 1888 and 21st February 1889, and under an ijara of 12th March 1889 and a Kobala of the 25th July 1904 is owner of 1 anna 6 dams and 5 cowris and ijaradar of 1 anna 13 dams 15 cowris. In other words, he seeks to establish his present right to 16 annas in one capacity or the other and on the strength of this he prays that his possession of the 16 annas may be confirmed or restored to him. This suit was heard by the Subordinate Judge, first Court, Gaya, by whom it was dismissed. The appeal was heard by N. Chatterjea and Walmsley, JJ., who agreed so far that they passed a decree in the plaintiff's favour to the extent of the 1 anna 6 dams 5 cowris. But as to the rest they were at variance, for while Chatterjea, J., was for decreeing the plaintiff's claim in its entirety, Walmsley, J., was for disallowing therest of his claim. A decree was accordingly drawn up and signed in accordance with the view of Walmsley, J. The plaintiff has appealed from so much of the decree as is not in accordance with the concurrent judgments of both the learned Judges. Certain preliminary objections were overruled and we have heard the case on the merits.

2. In Pargana Shergati, Zilla Gaya, there is a taluka named Khaira which belonged in equal shares to Nabi Bukhsh Khan and Mohammed Bukhsh Khan.

3. On the death of Nabi Bukhsh his 8 annas admittedly devolved or was treated as having devolved as to 5 annas on his daughter Hussaini Bibi and as to 3 annas on Mohammed Bukhsh and his children. It is common ground that the 8 annas of Mohammed in certain villages forming a part of Taluka Khaira passed to the plaintiff under the sale-deed of the 21st February 1888, that the 5 annas of Hussaini so passed under the sale-deed of the 21st February 1889, and that the remaining 3 annas passed for a limited interest under the iiara of the 12th March 1889. The plaintiff maintains that among the villages that so passed to him was Harya Manar. This the defendant Irshad Ali Khan contests, and this dispute is the question involved in this litigation. Irshad Ali Khan claims to be the owner of Haria Manar by virtue of a revenue sale to the defendant Ali Nabi as his benamdar, and it is not disputed that he acquired this property unless the plaintiff is able to make good his claim that the property was assured to him and that it was included in the separate account opened in the name of his benamdar, Bishendhari.

4. First then I will deal with the question whether Haria Manar did or did not pass to the plaintiff.

5. This has been treated in the discussion before us as dependant on the true construction of the sale-deeds of 21st February 1888 and 1889. The parcels are described in the first of these two deeds as follows:

8 annas out of 16 annas of each of the Mouzahs, Chuahar, Majhar, Dangrajaribigha, Mairakhap and Jaigir Harya, Pargana Shergati, District Gaya, appertaining to Taluk Khaira mai with hamlets Chuck, Chukukats, Tola, and Maijra known by distinct names or otherwise the touzi number and jumma suddar whereof are given below in the thakbust map prepared by the compass which has up to date been held and possessed by me without the co-partnership of or interference by any one else.' And then there follow general words that may for the present purpose be disregarded. Then at the foot of the deeds are these words: Mortgaged properties 8 annas out of 10 annas of each of the Mouzahs (1) Chuahar, (2) Majhar, (3) Dangrajaribigha, (4) Mariakhap, and (5) Jaigir Harya mai with hamlets, Chucks and Chakukats, known by distinct names or otherwise, Tolas and Maijras appertaining to Taluka Khaira, Pargana Shergati, District Gaya.' Then there is this: 'Property sold--eight annas out of 16 annas of each of the Mouzahs Chuahar, Majhar, Dangrajaribigha, Mairakhap and Jaigir Harya appertaining to Taluk Khaira, Pargana Shergati, District Gaya.

6. The only other matter to which I need refer is the recital of a prior mortgage of 'shares of Mouzah Jaigir Harya.' Much the same sort of description is to be found in Musammat Hussaini Bibi's sale-deed of the 31st July 1889. There is a recital of negotiations for the sale of 5 annas out of the entire 18 annas of Jaigir Harya and of shares of certain mouzahs.

7. This is followed by a description of the parcels in the operative part of the sale-deed in these terms: '5 annas out of the entire 16 annas of Mouzah Jaigir Harya' and so forth. In the description of the property sold at the foot of the instrument is 'Five annas out of the entire 16 annas of Mouzah Jaigir Harya', and so forth. Under the heading of Government Revenue of the property sold is written 'Jaigir Harya, Rs. 33-15', and the description of the property at foot is 'Five annas of Mouza Jaigir Harya.' What then is it that passed under the description 'Mouzah Jaigir Harya?' To answer this it is necessary first to go back to the Revenue Survey of 1843-44. There we find two separate maps, one of Jaigir and the other of Harya. In these maps each is treated as a mouzah, Harya lying to the north and Jaigir to the south.

8. The full name of Harya according to the map is Harya Bank Unair Churwadee Choor. Its area is shown as 786 a. 3r. 22p. The village is described as not inhabited and of the land only 100 bighas were cultivated, the rest being jungle. The area of Jaigir in its map is given as 3356, of which 400 bighas are said to be cultivated. The village is described as inhabited. In the Mahal war Register we find grouped together Jaigir Harya, Soonwar Mai zamin Pirtabal, and Pukureah zamin Churadih Chardaha suoum hissa as one unit with an area of 4,515a.-1r.-3p. The composition of this area has become apparent in the course of the discussion before us. Separate maps of Soonwar and Pukureah have been produced by the respondents in which the areas of these two items are shown as 253 and 119 acres respectively and it is thus that the area of 4,516 acres is reached, In a word, then, this is what appears from an examination of the Survey proceedings Four separate maps are given of Jaigir Harya, Soonwar and Pukureah and to this extent they are treated as 4 distinct Mouzahs. But it further appears that in the Mahalwar Register they were grouped together as a single composite unit having a single area of 4,516 acres, a figure which corresponds with the sum of the areas of the several items Jaigir Harya, Soonwar and Pukureah. Though Jaigir and Harya are contiguous Soonwar and Pukureah are at some distance away from them the one lying to the north-west and the other to the south-west of Jaigir Harya.

9. And it may be observed of these last two that as things stood at the survey, Jaigir was the more important by reason of its larger area and its being inhabited So tar then as the survey materials go they lend themselves to the idea that the expression Jaigir Harya would mean the two items of the composite unit bearing those names, Harya being in the nature of an appanage to Jaigir, the paramount member of the group.

10. This brings me to certain registration proceedings. On the 26th April 1877 an application was preferred by Mohammed Bukhsh Khan for registration and mutation of names. One of the items there mentioned is 'Jaigir Harya Soonwar Bang Zamin Chowaddih 8 annas--Pukureah Chardaha zamin Partapi 8 annas.' On this the record-keeper on the 27th August 1878 submitted his report, stating that the under mentioned areas were recorded with separate areas. Among these mouzahs was 'Jaigir Harya Soorbang zamin Partapi Pukureah zamin Jorwadih Khurd 1/6th share 4516a. 1r. 3p.'

11. On the 24th of July 1878 a joint hissawari Petition was presented in which Jaigir and Harya Monwar Main zamin were separately described and it was followed by the Land Registration decree of the 28th April 1879 in which Mouzah Jaigir and Mouzah Harya Monwar are shown. On the 12th March 1886 Musammat Hussaini Bibi presented a petition for opening a separate account

12. Among the items in the Schedule to her petition is the following:

Mouza Jaigir Harya, Soorbang zoimin Partapi Pukureah zamin of Chorwadih.' The Government Revenue of the entire 16 annas is stated to be Rs. 108 odd and the applicants proportionate share Rs. 33-15, while the area is described as 4,516a. 1r. 3p. This statement of the Government Revenue agrees with the description in Musammat Hussaini Bibi's sale-deed while the area includes Harya as well as Jaigir. Moreover it is inconceivable that the application should not have extended to Harya, and yet it only did so if Harya be included in the description 'Mouzah Jaigir Harya.' On the 10th July 1888, after the purchase from Mohammad Bukhsh, Bishendhari Gir applied for registration. The name of the mouzah is given as Jaigir Harya. The record-keeper's report is that to Mahal Khaira appertained: 'Mouzah Jaigir Harya Monwar together with zamin and other mouzahs.

13. The order to the record-keeper dated 31st December 1888 directed entries to be made and the entry as to the proprietary right and share was '8 annas of Mouzah Jaigir Harya Monwar together with zamin,' a description that appears twice in the Schedule to the order.

14. On the 7th June 1889, after the purchase from Musammat Hussaini, Bishendhari Gir again applied for registration and mutation of name. There the description is 'Mouzah Jaigir Harya' which is repeated by the record-keeper. In a decree of the 9th September 1889 the specification of interest is 5 annas each Jaigir Harya Dangrajaribigha, &c.;' In an amended petition of 16th January 1890 the description is Jaigir Harya Monwar together with erazi. The sadar jama is given as Rs. 100 odd but the description of the proportionate area is obviously erroneous, and does not tally with the entire area, which is correctly described. The error can probably be traced to a misplaced reproduction of what is shown in Hussaini Bibi's peitition.

15. On the 5th June 1890 it was ordered that separate accounts be opened. This was done after the record-keeper had reported that the petition fulfilled the requirements of Section 70 and that the proportionate amounts of Government Revenue as stated by the petitioner were correct. The sadar jama of the joint share was reported to be Rs. 3,893-15-0, and that represents the difference between the Rs. 1,043-5-0 shown in Hussaini Bibi's petition as her proportionate share of Government Revenue and the sadar jama of Rs. 4,437-4-0 shown in the endorsement on the back of that petition.

16. On the 5th August 1893 Bishendhari Gir preferred a petition for the inclusion of Rs. 1,020-13, the nizamat for the separated share of Musammat Hussaini Bibi and others, in the ijmali share and the description there given is Mouzah Jaigir Harya.'

17. Then there are the Registers of 1900. They are not the originals but transcripts and their value as throwing light on the problem before us is materially discounted by their manifest inaccuracy.

18. Thus this Collectorate Register gives 79 acres as the area of Jaigir and 4,516 acres as that of Harya though it is known that these areas were 3,356 and 786 acres respectively. Moreover we further know that 4516 acres was the area of the composite unit Jaigir Harya, Soorbang and Pakureah. Another instance of hopeless error in this new register is furnished by the area attributed to Kahudag.

19. In view of these matters I am not disposed to place any great reliance on the fact that in this register there is separate mention of Jaigir Harya Manar and Harya Manar, or to regard it as materially assisting the defendant's case. And I am the more confirmed in this view by the obvious and surer indication of the contents of these earlier registers afforded by the several reports of the record-keepers to which I have alluded. The original registers are not forthcoming for they have been destroyed.

20. In the proclamation of the 28th April 1904, Jaigir Harya Manar 3 annas is named and Harya Manar including the land 16 annas, and the same descriptions are found in the plaintiff's sale certificate of the 22nd September 1904. But they do not appear to me to add anything to the strength of the case against the plaintiff in view of the earlier matters that I have narrated. If they were taken from the erroneous register as is surmised, the error gains nothing by repetition.

21. A stronger circumstance, however, in the defendant's favour is to be found in certain execution proceedings to which I will now allude. A suit on a mortgage had been instituted by one Baijnath Singh and others against Mohammed Bukhsh and others, of whom Bishendhari Gir was one, for the mortgage and suit included among other things the properties purchased by him. The suit ended in a compromise under which the properties purchased by Bishendhari were exempted from the operation of the mortgage and the decree was limited to the rest of the properties then in suit. Subsequently Mohant Krishna Doyal Gir, the plaintiff in this suit, obtained an assignment and on the 4th of September 1907 applied for execution of the mortgage-decree. In his application he included among other items even and odd annas share of Harya Manar maizamin notwithstanding the exemption.

22. This is not unnaturally claimed by the defendant as an admission that the exemption, did not extend to Harya though it did to Jaigir and that it is in form such an admission must, I think, be conceded. But the value in fact of that which is in form an admission, must depend on the surrounding circumstances; and though we have no explanation from the witness-box of how Harya came to be included in this application of the 4th September 1907, it is significant that the plaint in the present suit which specifically and exclusively contends that Harya had passed to the, plaintiff under the sale-deeds, was filed only two days later, on the 6th September, 1907. One may speculate as to the explanation, and wonder whether the inclusion of Harya in the execution application was due to a lack of care or an excess of caution, to an oversight or to a prudent' design to have a second string to the Mohant's bow, but the materials before the Court do not permit of any sure conclusion as to this. A comparison, however, of the dates to my mind is destructive of the idea that the execution proceedings amounted to any abandonment of the position asserted by the plaintiff in this suit, or can be regarded as any real admission that Harya had not passed to the plaintiff. At its worst e it is an indiscretion. But it is not enough for the plaintiff to show that Harya was assured to him he must show a separate account in his favour. The Court's decision on this must be largely dependent on the view it may form as to the title. If title is not shown almost of necessity there could be no separate account. But if title' be shown, there would in the circumstances of this case be a strong bias in favour of a separate account.

23. I have already described the plaintiff's applications for separate registration in discussing what it was that passed to him. From those proceedings it is apparent that the applications and the orders thereon were appropriate and should have resulted in the separate registration sought and directed. It is, however, contended that the actual entries made related only to Jaigir and not to Harya, and in support of this the defendant points more particularly to the heading 'Harya Manar' in the register and the absence of any entry in the plaintiff's favour. But as I have already pointed out, this register does not purport to be more than a transcript of the register in which the original entries were made and is patently incorrect.

24. And apart from that, even in this register' the heading under which the plaintiff's name is entered is village jaigir Harya Manar, and were it not for the later entry 'Village Harya Manar maizamin' it could hardly be doubted that the first heading referred to Harya as well as Jaigir and was the-appropriate place for making the entries directed. How this later entry came to be made does not clearly appear, though it may be easy to guess. But this at any rate1 seems clear, that it was not made until 1904 and an examination of the original register shows it was made after the entry of Jaigir Harya Manar. There is oral evidence as to Jaigir being; popularly, known as Jaigir Harya, but it is far from convincing and cannot be regarded as of the same, value as the documentary evidence. This was fully recognized in the presentation of his case by the: learned and experienced Vakil who represented the defendant And, after all is said and done the salient fact stands out that apart from the recent register no instance can be pointed out where Jaigir alone is called Jaigir Harya.

25. The conclusion to which I come is that the opening of a separate account in respect both of Harya and Jaigir was sought and directed, and that this was intended to be carried out and in fact was carried out by opening an account with the heading 'Jaigir Harya Manar' or some such composite title. Therefore I hold that the plaintiff has established title to Harya and a separate account commensurate with his title.

26. I have so far dealt with the title under the two kobalas of February 1888 and 1889 and not with that under the ijara. And in view of the defendant's admission before us. I need not discuss this ijara and its operation, for it was conceded by the Vakil for the respondent that the title under the ijara would follow that under the kobalas. In fact the ijara title was in no way discussed by him.

27. The next point made by the defendant is that the suit is barred by limitation inasmuch as it was not brought within 12 years of the plaintiff's dispossession.

28. This is essentially a case where the Courts view of possession would naturally be influenced by its view as to title. As the Subordinate Judge and Walmsley, J., thought title had not been established, it followed almost as of course that they considered possession not proved having regard to the circumstances of the case Chatterjea, J., having come to a different conclusion as to title, differed naturally as to possession. And at this point I would digress for the purpose of pointing out that the parties placed much more ample materials before Chatterjea, J., and Walmsley, J., than before the Subordinate Judge and of this we have reaped the benefit.

29. There were proceedings under, Section 145, Criminal Procedure Code, and it was there held that though the present plaintiff's men realized rent from the village down to the dasahra of 1904, the defendant was in possession at the commencement of the proceedings under Section 145. This is the dispossession of which the plaintiff complains.

30. The position as to possession is a simple one. The defendant does not, and indeed cannot, suggest that he was in possession before his purchase, and that was well within the period of 12 years prior to the institution of this suit. At the same time there is absolutely no evidence that Mohammad Bukhsh and Hussaini were in possession during the period subsequent to the plaintiff's purchase. Such evidence as there is supports the plaintiff's possession and in the view I take this is in accordance with the title.

31. The Subordinate Judge and Walmsley, J., ascribe much value to the absence of Harya tenants from the plaintiff's side, but they seem to overlook that in the circumstances this was in accordance with their interest.

32. On the other hand it is, I think, a just and shrewd remark of Chatterjea, J., that the admitted absence of a cutchery at Harya Manar for collection of rent is far more important than the evidence of any number of witnesses. And I must say that the evidence of witnesses, who would account for the absence of their rent receipts by the action of the high winds, is not calculated to inspire confidence.

33. As a final point the defendant suggested that the suit should have been for setting aside the sale and if so framed, it would have been far beyond the statutory period of limitation. And in this connection Gobind Lal Roy v. Ramjanam Misser 20 I.A. 165 : 21 C. 70 was cited to us. But the argument overlooked or disregarded the fundamental distinction between the circumstances of that case and of this, and in particular failed to notice that if, as I hold, the plaintiff has made out his title to any separate account there was no arrear in respect of Harya and no condition justifying a sale.

34. The result then is that in my opinion the decree of Walmsley, J., should be modified and a decree passed in the plaintiff's favour declaring his title as prayed and establishing his possession. The defendant must pay the costs of the suit and appeals including the costs of, and incidental to, the Collectorate, documents being brought to this Court for the purpose of the hearing of the appeals.

Mookerjee, J.

35. This is an appeal by the plaintiff in a suit for recovery or confirmation of possession of land on declaration of title thereto under three conveyances, dated 21st February 1888, 21st February 1889 and 25th July 1904, and a usufructuary mortgage dated 12th March 1889. The trial Court dismissed the suit on the ground that the plaintiff had failed to prove his title and possession. On appeal to this Court, Mr. Justice N. Chatterjea held that the plaintiff had proved his title and possession and was entitled to a decree in full. Mr. Justice Walmsley held, on the other hand, that the plaintiff had proved his title by purchase to the extent of 1-anna 6-dams 5-cowris share only under the conveyance of the 25th July 1904, and was entitled to a decree in respect thereof. These judgments were delivered on the 4th September 1913. On the 5th December 1913, Mr. Justice Chatterjea directed that a decree be drawn up to the effect that the plaintiff do recover possession of 1-anna, 6-dams, 5-cowris share (as to which both the Judges were agreed that the decision of the primary Court was erroneous), and that the suit do stand dismissed as to the remainder of the claim On the 22nd December 1913, the plaintiff preferred the present appeal under Clause 15 of the Letters Patent. When this appeal came on for hearing on the 29th April last, two preliminary points were raised, one on behalf of the respondent, the other on behalf of the appellant. These objections were overruled as untenable. The respondent contended that the appeal had been lodged out of time, as the memorandum had been presented after the expiry of thirty days (the period prescribed in this behalf by the rules of the Court) from the date of the delivery of the judgments, and reference was made to the decisions in In the matter of the petition of Huruck Singh 11 W.R. 107 and Huruck Singh v. Toolsee Ram Sahoo 12 W.R. 458 : 5 B.L.R. 47. There is plainly no substance in this contention. The term judgment as used in Clause 15 of the Letters Patent signifies what is now understood by the term 'decree' or 'order.' The decree in the present case was not drawn up till the 5th December 1913, and the appeal was lodged within thirty days from that date. In any event, this is clearly a case where the Court should, in the exercise of its discretion, extend the period for presentation of the appeal. There is consequently no substance in the preliminary objection taken by the respondent. The preliminary point raised by the appellant turned out on examination to be equally illusory. The appellant contended that the decree should have been drawn up in accordance with the judgment of the senior Judge, and referred to the decisions of Husaini Begam v. Collector of Muzaffarnagar 11 A. 176 : A.W.N. (1889) 27 : 13 Ind. Jur. 316 and Jehangir v. Secretary of State 6 Bom. L.R. 131 at p. 207. There is no foundation for this argument. The Judges of the Division Bench were agreed that the decree of the Subordinate Judge was erroneous in respect of the share covered by the conveyance of the 25th July 1904. With regard to this sharp, the decree was thus bound to be reversed under Sub-section (1) of Section 98, Civil Procedure Code. In respect of the remaining share, the Judges were equally divided in opinion; Mr. Justice Chatterjea thought that the decree should be reversed while Mr. Justice Walmsley thought that the decree should be affirmed. Consequently there was no majority in favour of a reversal of the decree, and to this extent, the decree was bound to be confirmed under Sub-section (2) of Section 98, Civil Procedure Code, Appaji Bhivrao v. Shivlal Khubchand 3 B 204. Sri Gridhariji Maharaj Tickait v. Purushotum 10 c. 814. Lala Suraja Prosad v. Golab Ghand 27 C. 724 : 4 C.W.n. 701, Ashutosh Roy v. Harinarain Singh 3 C.L.J. 143 Devachand v. Hirachand 13 B. 449. Keshav Pandurang v. Vinayak Hari 18 B 355. Bammidi Bayya Naidu v. Bammidi Paradesi Naidu 10 Ind. Cas. 75 : 35 M. 216 : 21 M.L.J. 344 : 10 M.L.T. 533. There was thus no room for the application of Clause 36 of the Letters Patent and it follows that the decree has been correctly drawn up. But from another point of view, the objection taken by the appellant is unsubstantial. Even if it were well founded and we directed that a decree be drawn up in accordance with the judgment of the senior Judge, the defendant would forthwith appeal from such decree, and on such appeal, the merits of the controversy would require examination. There is thus no escape ultimately from an investigation of the question in dispute between the parties--and that question in substance is, whether, under the deeds mentioned, the plaintiff purchased only one village Jaigir or two villages Jaigir and Harya and had these included in a separate account opened at his instance under the provisions of the Revenue Sale Law.

36. The history of the title alleged by the plaintiff may be briefly narrated. On the 21st February 1888, the plaintiff purchased from Mahomed Bux, one of the admitted proprietors of the disputed property, an eight-annas share in Jaigir Harya. On the 21st February 1889, he purchased a five-annas share from Hussaini Bibi, another admitted proprietor. On the 12th March 1889, he took a usufructuary mortgage of three-annas share from Mahomed Bux, who acted in this transaction for himself and on behalf of his infant children, who, it is not disputed, were jointly interested in that share. There were then proceedings before the Revenue Authorities for registration of the name of the plaintiff and the separation of the share acquired by him; to these reference will presently be made. On the 30th May 1904, the residuary share of the estate was sold for arrears of revenue and was purchased by the defendant in the name of Ali Nabi, On the 25th July 1904, the plaintiff purchased from Ali Nabi 1-anna 6-dams 5-cowris share of Jaigir and Harya, and with reference to this share, Chatterjea and Walmsley, JJ., have agreed that the plaintiff is entitled to succeed. No further reference need be made to this share, as there is not and could not have been an appeal by the defendant. The questions in controversy now are, first, whether the plaintiff has, under the other transactions. mentioned, acquired a good title to 13 annas share as proprietor, and to 1-anna 13-dams 15-cowris' share as usufructuary mortgagee, of both Jaigir and Harya, as the plaintiff asserts, or of Jaigir alone as the defendant contends; and, secondly, whether, if the first question is answered in favour of the plaintiff, his share of Harya was constituted into a separate account as be maintains or remained merged in the residuary share as the defendant alleges.

37. To determine what the vendors and mortgagors of the plaintiff intended to transfer and did transfer to him in 1888 and 1889, we must look to the deeds themselves. The description given there may be compendiously stated as Mouzah Jaigir Harya To ascertain the meaning of this expression, we must look back to the antecedent transactions in respect of Jaigir and Harya. We have in the first place the Revenue Survey Maps of 1843-44 when the mouzahs comprised in Pergana Shergati were surveyed and delineated by Sherwill. We find that at that time there were two mouzahs, Jaigir and Harya; the latter lay towards the north of the former. Jaigir was an inhabited village and comprised 3,356 acres (equal to 5,370 bighas); only 400 bighas were cultivated and the rest were described as hill and jungle. Harya was uninhabited; its area was 786 acres (equal to 1,269 bighas); only 100 bighas were under cultivation, the remainder was jungle; There is nothing to indicate that Mouzah Jaigir was at that time known by the appellation Jaigir Harya; on the other hand, the map of Harya shows that the southern portion thereof was in different parts known by different local names, Bank Unair Churwadee, Choor, which all appear on the map of Jaigir and in the heading of the map of Harya. We next have proceedings before the Revenue Authorities after the Land Registration Act of 1876 had come into operation. The application by Mahomed Bux for registration of his name, made on the 26th April 1877, treats Jaigir and Harya as distinct mouzahs; but it is noteworthy that these two mouzahs are linked with two others, namely, Sowa Bank and Pakuria and the aggregate area of the four mouzahs is stated to be 4,516 acres. This has been verified before us and found correct on a reference to the Survey Maps of Sowa Bank (or Sooibang) and Pakuria; the approximate areas of the four villages are 3,356, 786, 253 and 119 acres respectively. No explanation is available at this distance of time as to how the four mouzahs came to be linked together; what had transpired between 1843 and 1877 is absolutely unknown. Two of these villages, namely, Jaigir and Harya, are contiguous to each other and may be deemed to lie between one set of boundaries; the other two, however, were distinct and separate parcels situated at some distance, one to the north-west, the other to the south-west. But whatever the history of the matter may be, the fact remains that in 1877 Jaigir and Harya were treated as distinct mouzahs, though they were linked for revenue purposes with two other villages. The order for registration made by the Collector on the 28th April 1879 was in accord with the petition and shows Mouzah Harya separately from Mouzah Jaigir. We have not on the record the corresponding application and order for registration in respect of the share of Hussaini Bibi, but we have an application by her, dated the 12th March 1886, for amendment of mistakes in her petition for separate account; this application recites that errors had crept into the registration decree. In this application, the four mouzahs already mentioned are linked together and boundaries are given as if they were all comprised within the same set of boundaries--which we now know is not a fact. It may be observed also that the northern boundary of Mouzah Jaigir Harya as given in this petition is at first sight misleading as it is stated to be Harna Chuk. No Harna Chuk is shown on the map of Jaigir at any portion of its northern boundary, but the word Chuk appears on the boundary to the north-west in the map of Mouzah Harya. Whether the northern boundary as given in the petition refers to this Chuk may be a matter for speculation; but this much is clear that the Harya Chuk mentioned as the northern boundary is not Harya. All doubt on this point is removed by an examination of the original: what is given as the northern boundary is either Harya Chuk or Harna Chuk while the mouzah whereof the boundary is specified is Jaigir Harya. This petition consequently lends no support to the theory that Mouzah Jaigir Harya meant Mouzah Jaigir alone and that towards the north of it lay Harya. Apart from this and irrespective of mistakes which may have been made in the application for separate account, it is indisputable that the description Mouzah Jaigir Harya could not have been intended to mean Mouzah Jaigir alone, for the area is stated to be 4,516 acres which is the area of all the four villages and not of three alone. Consequently, the order of the Collector dated 24th September 1886 that separate accounts be opened, admits of one interpretation only, namely that the separate account should include not Jaigir alone but both Jaigir and Harya. We have now reached a point of time when the transactions with the plaintiff commenced. The conveyance of the 21st February 1888 describes the property as Jaigir Harya; this, in the light of what had proceeded, must be taken prima, facie to mean both Jaigir and Harya, and the same interpretation must be placed upon the application of the purchaser, made on the 10th July 1888, for registration of his name. The order of the Collector dated 31st December 1888 is consistent with this view. We have next the conveyance by Hussaini Bibi dated 21st February 1889, which, taken along with her application to the Collector in 1886 and the order thereon, must be deemed to cover both Jaigir and Harya. A different effect cannot be attributed to the application of the purchaser made on the 7th June 1889 for registration of his name and the order thereon by the Collector dated 9th September 1889. It is needless to dwell at length on the usufructuary mortgage of the 12th March 1889, because, it is conceded, that it must be taken in the same sense as that ascribed to the conveyances. There comes next the application of the plaintiff dated 16th January 1890 to open a separate account. The statement of area comprised in the share of the applicant is incorrect and appears to have been copied out from the previous applications of Husaini Bibi dated 12th March 1886 and 21st February 1889. But it is plain that the plaintiff intended to apply in respect of both Jaigir and Harya and that the order for separate account was made accordingly. A suggestion was faintly put forward that the revenue for the separate account was not correctly calculated; no foundation has been laid in the evidence to support this assertion _nor, can the question, be raised at this stage by the defendant, who under Section 54 of Act XI of 1859 has not acquired any rights which were not possessed by the previous owners of the residuary share purchased by him. The distribution of revenue was made after notice to all the proprietors and they did not challenge the order of the Collector by way of appeal to the superior Revenue Authorities or otherwise. The result was that the order for separate account was made and has been given effect to ever since the 5th June 1890. On the 5th August 1893, the plaintiff found that the separate account of Hussaini Bibi must be closed; he himself had acquired shares both out of the separate account and the residuary estate, and after his share had been constituted into a separate account, what remained in the separate account of Hussaini Bibi had to be thrown back into the residuary estate. This was done accordingly on the 21st July 1894. What then was the position of the parties at that time? The plaintiff had, by successive transactions, become the proprietor and the mortgagee of both Jaigir and Harya; on this point, I cannot, on the deeds and on an examination of the history of the title to the property, entertain reasonable doubt. This view is strengthened by the entries in the Mahalwar and Morzawar Registers, and by the hissawari petition signed by all the proprietors and presented to the Collector on the 24th July 1878 in the proceeding by Mahomed Bux for registration of his name. Against all these documents which converge to a conclusion in favour of the plaintiff, we have oral evidence of an unreliable and inconclusive character adduced by the defendant to show that Jaigir was popularly known as Jaigir Harya while Harya was known by its own special name. But the case for the defendant is founded really on what are called the Intermediate Register and the D, Register, which it is said show two distinct mouzahs, namely, Mouza Jaigir Harya Manar and Mouzah Harya Manar; the former, it is contended, includes Mouzah Jaigir only and the latter Mouzah Harya; the plaintiff is registered in respect of the former but not with regard to the latter. This D Register is unreliable and contains grave errors; it is not the original register, but a copy prepared so late as 1900 from vernacular records which have now been destroyed. The contents of the original papers are unknown, but it is clear that they must have contained entries, different from what we find in the present register. The proceedings before the Revenue Authorities from 1877 onwards, particularly the registration decrees and the orders for separate accounts were presumably carried out in the Collectorate. The result of those proceedings-is entirely inconsistent with the D, Register as it now stands. No trace can be found in those proceedings or orders that Mouzah Jaigir was called Jaigir Harya and that Harya was again separately called by its own name. It would not be right to hold that this register supersedes and nullifies the effect of the long series of proceedings before the Revenue Authorities, specially when we find that it contains serious errors the origin of which cannot be explained. For instance, the statement of area of what is called Jaigir Harya and Harya is in each case entirely wrong; in the former instance, it is 79 acres; in the latter case, it is 4,5l6 acres which is the area of the four villages previously mentioned. A similar error has been discovered in respect of at least one other mouzah; the register shows that Kahudag comprises only 201 acres while the survey map shows its area as 2,009 acres. The truth obviously is that the first entry in the register, namely, Mouzah Jaigir Harya includes both Jaigir and Harya, and that the much later entry about Harya alone must be ignored; how and when the second entry came to be made has been left wholly unexplained. Much stress has also been laid on behalf of the defendant upon an application for execution of a mortgage decree made by the plaintiff two days before the institution of this suit. The plaintiff made this application as assignee of a decree obtained on the 11th August 1896 by one Baijnath against Mahomed Bux on foot of mortgage dated 16th March 1887. The Schedule to the mortgage included all the mouzahs of Taluk Khaira, which admittedly comprises the disputed property. The plaintiff in his application for sale of the mortgaged properties mentioned Harya. On this circumstance the argument is based that Harya could not have belonged to the plaintiff. This contention is fallacious; the fact when taken most strongly against the plaintiff amounts to a statement apparently in conflict with his present claim; how it came to be made, has not been explained in evidence and one is left to speculate whether it was made by oversight, possibly reproduced from a previous application by the decree-holder or Whether it was made deliberately as an ultimate resource in the event of failure of this suit Whatever the real explanation may be, the statement does not amount to Abandonment of his rights by the plaintiff and does not negative the effect of the other evidence on the record. It consequently follows that the predecessors of the plaintiff owned both jaigir and Harya, that they intended to transfer and did transfer both the properties to him, and that at his instance, the mouzah was included in a separate account distinct from the residuary share purchased by the defendant at the sale for arrears of revenue. But it has been argued on behalf of the defendant that even' if this view be well founded, it was obligatory upon the plaintiff to have the sale set aside within one year from the date thereof, as the proclamation under Section 7 of Act XI of 1859 and the sale-certificate granted on the 22nd September 1904 show, that the Collector intended to sell and did sell the disputed property. Reliance has in this connection been placed upon the decision of the Judicial Committee in Gobind Lal Roy v. Ramjanam Misser 20 I.A. 165 : 21 C. 70. This argument is clearly fallacious. No doubt, Section 33 of Act XI of 1859 applies not only where the sale has been irregularly conducted but also where the sale has been illegal as held in contravention of an express provision for exemption. But this principle has no application where the property sold is not in arrear; the existence of an arrear is a condition precedent to the exercise of statutory authority by the Collector: Balkishen Das v. Simpson 25 I.A. 151 : 25 C. 833 : 2 C.W.N. 513 : Harkhoo Singh v. Bunsidhur Singh 25 C. 876 : 2 C.W.N. 360 : Jogendra Mohan Sen v. Uma Nath Guha 35 C. 636 : 8 C.L.J. 41 : 12 C.W.N. 646: Mahomed Jan v. Ganga Bishun Singh 10 Ind. Cas. 272 : 13 C.L.J. 525 : 38 C. 537 : 15 C.W.N. 443 : 9 M.L.T. 446 ; 8 A.L.J. 480 : 13 Bom. L.R. 413 : (1911) 2 M.W.N. 277 : 21 M.L.J. 1148(P.C.). : Ganga Pershad v. Irshad Ali 13 Ind. Cas. 959 : 15 C.L.J. 54. : Hamid Hossein v. Mukhdum Raza 32 C. 229 : 9 C.W.N. 300 : indramani Dasya v. Priyanath Chakravarti 21 Ind. Cas. 953 : 18 C.L.J. 505 : 18 C.W.N. 490. In the case before us, Mouzah Harya was not in arrear, as it formed no part of the residuary estate. If the officers in the Collectorate erroneously supposed that Harya was comprised in the residuary estate and under this impression, exposed it for sale, the sale was clearly beyond the statutory authority vested in the Collector and could not prejudice the right of the plaintiff.

38. The question of possession finally requires consideration for the determination of the question of limitation. The case is clearly within the scope of Article 142 of the Schedule to the Indian Limitation Act. The plaintiff must prove that he was in possession within 12 years of the institution of the suit. He relies upon a statement, in an order under Section 145, Criminal Procedure Code, made on the 9th December 1905 in a proceeding between him and the defendant, to the effect that he was dispossessed in September 1904. This finding in the order of the Criminal Court is not admissible, though the order itself is admissible for a limited purpose, namely, to show the parties in dispute, the land in dispute and the person declared entitled to retain possession, as explained by Lord Lindley in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani29 C. 187 : 29 I.A. 24 : 6 C.W.N. 386 : 12 M.L.J. 83. We are accordingly thrown back upon the oral evidence of possession. Here we have oath against oath. The witnesses for the plaintiff seek to prove his possession down to 1904. The defendant does not allege that he was in possession before his title accrued by purchase at the revenue sale in 1904. Consequently we have to see whether the plaintiff was in possession as he asserts or his vendors and mortgagors were in wrongful possession. There is no evidence to show that they had such possession. They had admittedly parted with Jaigir and delivered possession to the plaintiff; if thereafter they retained possession of Harya contrary to their deeds, they would presumably require a cutchery in Harya; there is no trace of such a collection office in that village. Stress has been laid on the fact that the tenants of Harya had not been called by the plaintiff; the answer is that they are now under the influence of the defendant, and it does seem probable, as suggested by the plaintiff, that these tenants have paid no rents to either of the claimants since the dispute broke out. I accept the evidence of the plaintiff that he was in possession till dispossessed by the defendant after the revenue sale of the residuary estate in 1904. The inference follows that the plaintiff has established his title and possession as set out in the plaint. The result is that this appeal must be allowed and the suit decreed with costs both here and in the Court below. The costs in this Court must include the costs of the two hearings and the cost of obtaining the additional evidence from the Collectorate.

Richardson, J.

39. I have arrived without any hesitation at the same conclusion and for similar reasons.


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