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Baraik Badri Sahi and ors. Vs. Chamra Uraon and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.431
AppellantBaraik Badri Sahi and ors.
RespondentChamra Uraon and ors.
Cases ReferredRadhamoni Debi v. The Collector of Khulna
Excerpt:
second appeal - onus, question of--limited interest--prescription--home-farm lands of landlord, cultivation of--trespasser--landlord's knowledge. - .....by the munsif who found that the defendants were mere trespassers, having no right or title to the land in suit. the learned judicial commissioner, however, decreed the appeal and dismissed the suit.3. three points have been taken by the learned counsel for the plaintiffs-appellants in this appeal.4. the first is that the judicial commissioner has wrongly placed the onus on the plaintiffs. it does not appear to us, however, that the question of onus arises in this appeal. both the plaintiffs, and the defendant gave evidence in support of their respective cases. the evidence on both sides was examined by the judicial commissioner. he believed the defendants' evidence and disbelieved that of the plaintiffs and that being so we do not think that the first point taken can prevail. to.....
Judgment:

1. This was a suit for recovery of certain lands said to be the majhahas land of the plaintiffs. The plaintiffs alleged in paragraph 8 of their plaint that the disputed land was in their personal occupation and had all along been so held by them and their predecessors-in-interest and zurpeshgidars; that the defendants had no. concern with the disputed land, nor was the disputed land ever settled with them, but that they nevertheless had cut the paddy crops, which had been raised by the plaintiffs. On this act of dispossession the suit was instituted for khas possession.

2. The suit was decreed by the Munsif who found that the defendants were mere trespassers, having no right or title to the land in suit. The learned Judicial Commissioner, however, decreed the appeal and dismissed the suit.

3. Three points have been taken by the learned Counsel for the plaintiffs-appellants in this appeal.

4. The first is that the Judicial Commissioner has wrongly placed the onus on the plaintiffs. It does not appear to us, however, that the question of onus arises in this appeal. Both the plaintiffs, and the defendant gave evidence in support of their respective cases. The evidence on both sides was examined by the Judicial Commissioner. He believed the defendants' evidence and disbelieved that of the plaintiffs and that being so we do not think that the first point taken can prevail. To illustrate the findings of the Judicial Commissioner on this point we may quote the following passages from his judgment, 'I accept the defendants' evidence on this point, that actually the plaintiff and his predecessor have not been in possession of the lands in the last 20 years, but that the defendants and their predecessors have, claiming the lands to be ordinary rajhas lands in the village, and held by them as ryots.' And again later on the evidence indicates that ***** the plaintiffs' direct predecessors-in-title, the purchasers from the Bara Lal were never in khas possession of the land, but that these defendants and their predecessors-in-title were also then in possession * * * * * I find that the plaintiff and his predecessors-in-title from the years 1945 Sambat have not been in possession of the lands, but that they have been held by the defendants and their predecessor from that time on the obligation that the lands were ryoti lands held on a money-rent and adversely to the plaintiffs' obligation that the lands were majhahs.'

5. The second point taken by the learned Counsel for the appellants is that the learned Judicial Commissioner has erred in holding that the defendants have acquired by prescription a tenancy of the lands. Now, the findings of the learned Judicial Commissioner on this point are that since 1945 the defendant and their predecessors have been in possession of these lands, alleging that they are ryoti lands. That limited interest can be acquired by prescription is clear from the decision in the case of Ishan Chandra Mitter v. Ramranjan Chokarbutty 2 C.L.J. 125. We may quote the following passage: 'If, therefore, the party in actual possession of a property admits that he holds a limited interest in it, for example, as a tenant although he cannot plead prescriptive title in regard to general ownership, he may, in a suit for ejectment, successfully plead his adverse possession to the extent of the interest claimed by him.'

6. It has been argued that to justify a claim based on adverse possession of this nature it must be shown that the defendant asserted their tenancy to the knowledge of the landlord; and reliance has been placed on the decision in the case of Radhamoni Debi v. The Collector of Khulna 4 C.W.N. 597 : 27 I.A. 136 : 27 C. 943. That case, however, was quite different. Their Lordships of the Privy Council in the beginning of their judgment remark that it is well to have in mind the nature of the disputed land.' Subsequently it is stated that the ground, generally speaking, is Jungle, but there has been in some parts more or less of intermittent cultivation.' It is quite clear that in a case of that kind occupation of the land might well be unknown to the landlord; so also if a tenant holds land on a precarious tenancy, and asserts that he has a more permanent description of tenancy; it might well be that the landlord could not be supposed to have notice that the man, who was admittedly in occupation of the land as a tenant, really claimed a superior description of tenancy. But here we have the fact that these lands were majhahas lands, the home-farm of the plaintiffs, the lands which they cultivate personally or by their own hired servants. It seems to us perfectly reasonable that when a man, who is alleged to have no right whatever, a mere trespasser, settles on such land, and proceeds to cultivate it, the landlord must be supposed to know, that the occupant claims to be, at least a tenant of the land. It is clear, that, but for defendants' admission that they are tenants, it would have been incumbent on the plaintiffs to prove possession within 12 years of the said suit, and the suit would have failed accordingly. In this case it is not necessary for us to decide what sort of tenancy the defendants may have had. This is not a suit for khas possession on determination of a tenancy. It is a suit for khas possession on dispossession. But it is clear to us that the landlord must have known perfectly well from the very beginning that these persons claimed to be tenants of some kind, and that they have held this land for 20 years as such tenants. That being so, following the decision which we have quoted, we think that they have acquired by' prescription a tenancy of some kind on the land.

7. The third point taken is that the defendants could not have acquired a tenancy by prescription, inasmuch as the land has been let out to various Ticcadars. The findings on that point, however, seem to us to be sufficient. The learned Judicial Commissioner remarks that the land in. 1945 was sold to Maniram and Chaturbhuj. Later on he refers casually to the fact that Maniram and Chaturbhuj have not been examined to prove possession in their time, and subsequently he says, as we have already observed, that the evidence indicates that the purchasers from the Boralal (that is to say Maniram and Chatturbhuj) were never in khas possession of the land, but that these defendants and their predecessors-in-title were also then in possession.' He finds that the plaintiffs have not been in possession and that the defendants have been in possession since 1945, that is to say the year when Maniram and Chaturbhuj were the landlords of the land, and before any of the Ticcas, which have been put forward were given. It follows, therefore, that limitation began to run in 1945 and the fact that afterwards the landlords gave a lease of their interest to the Ticcadars, would not affect the question of prescription.

8. In our opinion all these points taken on behalf of the appellants fail and the appeal must be dismissed with costs.

9. The judgment will govern appeals from appellate decrees Nos. 2435 of 1907 and 2436 of 1907.


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