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(Moulvi) Ahidannabi Vs. Nagendra Lal Gangopadhya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal302
Appellant(Moulvi) Ahidannabi
RespondentNagendra Lal Gangopadhya and ors.
Excerpt:
- .....that they had right to, that land but that right was extinguished by limitation. on appeal the learned subordinate judge has found that the plaintiffs were able to prove their possession within 12 years of the suit and has given the plaintiffs a decree in respect of that plot. the present appeal in respect of that plot has not been pressed and we do not think that on the findings come to by the lower appellate court we are entitled to interfere with that portion of the judgment. as regards plot no. 169 the learned munsiff found that it did not belong to the plaintiff's jote and dismissed the plaintiff's suit. on appeal, the learned subordinate judge has given the plaintiffs a decree and hence the appeal by the defendants. the finding of the first court was based upon several items of.....
Judgment:

1. This appeal arises out of it suit brought by the plaintiffs for recovery of possession of three plots of land on declaration of their title thereto the plots being 169/1551, 169 and 136. With regard to the first plot, the Court of first instance held that they had right to, that land but that right was extinguished by limitation. On appeal the learned Subordinate Judge has found that the plaintiffs were able to prove their possession within 12 years of the suit and has given the plaintiffs a decree in respect of that plot. The present appeal in respect of that plot has not been pressed and we do not think that on the findings come to by the lower Appellate Court we are entitled to interfere with that portion of the judgment. As regards plot No. 169 the learned Munsiff found that it did not belong to the plaintiff's jote and dismissed the plaintiff's suit. On appeal, the learned Subordinate Judge has given the plaintiffs a decree and hence the appeal by the defendants. The finding of the first Court was based upon several items of evidence one of which was the admission by the father of plaintiffs Nos. 1 and 2, who was a witness on their behalf. His evidence is that Saritulla, the admitted tenant of the land, held his homestead and palan under both Surjamani and Ratanmani. The plaintiffs claim their title through Surjamani and the defendants through Ratanmani. This evidence shows that plots 169 and 169/1551 which taken together formed a complete tract in the possession of Saritulla and it has been found that plot 169/1551 belonged to Surjamani and therefore, to the plaintiffs. The learned Munsiff found that the other plot 169 must belong to Ratanmani's share. In this conclusion he is supported by the record-of-rights in which this plot is recorded as in the possession of defendant No. 1. The learned Subordinate Judge has dealt with the evidence relating to plot 169/1551 and has found that it belongs to the plaintiffs and that they were in possession of the same through their tenant Saritulla up to 1907. This plot he finds to he palan and plot No. 169 is a house attached to it. He, therefore, draws the conclusion that plot 169 must also belong to the same person to whom the former plot belonged. This opinion is also based upon the admission by the defendants that both the plots form really one bigger plot.

2. The learned Subordinate Judge however has not found the source of the plaintiffs' title and has not referred to any documentary evidence in support of this. He has not taken into consideration the admission made by the plaintiffs' witnesses on which the learned Munsiff relied, nor has he expressly stated anywhere that there is sufficient evidence on the record in respect of plot 169 which successfully rebuts the presumption in favour of the correctness of the Record of Rights. We do not think that the learned Judge was right in the way in which he has treated this portion of the case. It is urged by the respondents that as the conclusion which the learned Judge has drawn from the fact that when the adjoining plot is palan and belongs to the plaintiffs, this plot must also belong to the plaintiff's, is an inference of fact and we ought not to interfere with it in second appeal. 'We do not think that we are unable to revise a finding recorded by the Court of appeal below which is not based upon any legal evidence. The conclusion of fact must be drawn from certain other facts from which it may legitimately he drawn. In our opinion, from the mere fact that the adjoining plot happens to be a courtyard or outer compound of a house and belongs to a certain person, it ought not to be concluded in a case where the plaintiffs' suit rests upon establishment of title, that the plot on which the house stands must also belong to that person. We hold that the finding arrived at by the learned Subordinate Judge upon this point is not satisfactory as not based on legal evidence, and should therefore be set aside. In this connection the question of limitation may be considered. It appears that Saritulla was a tenant holding both these plots and he was treated as a tenant by both the parties. The plaintiffs claim him as their tenant whereas the defendants obtained a decree against him in the Civil Court and brought the jote to sale in execution. It is, therefore, possible that this man was a tenant of both parties in respect of two different plots; but we express no opinion upon the evidence. We only wish to point out that it may have a bearing upon the consideration of the question of title as well as on the question of limitation.

3. With regard to limitation the finding of the learned Judge is that though the defendants brought the holding of Saritulla to sale in 1906, there is no evidence as to when they took possession of it through Court. But there is evidence that they settled the land of Saritulla with other persons in October 1907. The present suit was brought in April 1919 and the learned Judge holds that the suit is not time barred on the ground that Saritulla continued to be the tenant of the plaintiffs down to 1907, when the land was settled with other persons. This piece of evidence that Saritulla had possession of this plot in 1907 as a tenant under the plaintiffs and the question of limitation are so mixed up that it would not be possible to consider one of them disassociated from the other. We are therefore of opinion that the learned Subordinate Judge should consider the question of title and limitation together in respect of plot No. 169. This disposes of the appeal. There is a cross-objection filed by the plaintiffs in respect of plot No. 136. Their grievance is that the learned Subordinate Judge has not considered the evidence relating to that plot fully. With reference to this plot, the finding of the Subordinate Judge is in these terms: 'Then first I deal with plot No. 136. The plaintiffs fired blank shots only. There is not a title of documentary evidence in plaintiff's favour. Then from documents before this Court plaintiffs sadly and signally failed to prove their shadow of title and interest or that this land falls within their jama and this land necessarily should go to defendants.' The plaintiffs have drawn our attention to five documents on record, the earliest being of 1877, which, they allege, show their title to and possession of this property. This plot is not mentioned in these documents as the cadestral survey was made after them; but it can be ascertained from the description and evidence if this plot was included in those documents. The learned Munsiff has not considered the recitals in those documents on the ground that they were contradicted by the evidence of the plaintiff's father. The learned Subordinate Judge, however, does not appear from what he has stated in respect of that plot to have considered these pieces of evidence. It is just possible that on a consideration of those documents he may be of opinion that this plot is not covered by those documents. But it is desirable that he should say something more than what he has already said viz., 'that there is not a title of documentary evidence.' After expressing himself thus the learned Judge again refers to the same documents and says: 'then from documents before this Court plaintiffs sadly and signally failed to prove their title.' We think that this part of the case has not been properly dealt with by him.

4. The result, therefore, is that this appeal is allowed, the decree of the lower Appellate Court in so far as it relates to plots Nos. 169 and 136 is set aside and the case remitted to that Court for a re-hearing of the appeal in respect of plots Nos. 169 and 136 in accordance with the observation contained in this judgment. Bach party should bear its own costs of this appeal. In other respects the decree of the Court below will stand.


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