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Ramendra Prosad Basu and ors. Vs. Baradaprosad Basu and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1938Cal206
AppellantRamendra Prosad Basu and ors.
RespondentBaradaprosad Basu and ors.
Cases ReferredMohima Chundar Mozoomdar v. Mohesh Chundur Neogi
Excerpt:
- .....the holding was recorded in the name of sailabala and after her death in 1913 in the name of her sons defendants 1 to 3. barada, it also appears, in certain solemn transactions, admitted that the house and the land underneath belonged not to him but to his wife. the two solemn transactions in which he made these admissions are evidenced by exs. a and b, namely a surety bond which he executed for duly discharging his office as receiver appointed in a certain suit and a loan application made on behalf of sailabala to a local bank in which he, as the assistant director of the bank from which the loan was applied for made an endorsement that the title to the said property was in sailabala. these are the respective cases of the parties with regard to the building. the substance of the.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by the defendants in a suit for declaration of title and recovery of possession of a house in Pabna town described in Sch, Ka and a piece of garden land in the town described in Schedule Kha to the plaint. The plaintiff Barada Prosad Bose was a pleader of Pabna District Court; he joined the Bar in 1893. The three defendants are his sons by his first wife Sailabala who died in 1913. The house in dispute stands on a piece of land of which the plaintiff got permanent lease from a landlord client. The lease was in his own name and on the land he built the house in suit in the years 1901-1904. The house was built in the name of his wife Sailabala. Even the bricks were struck with her own initials S. B. and the house being finished was named Sailadham. In the Municipal register, the house stood in her name and in two documents, one a security bond in favour of the District Judge and another an application for a loan to a Bank of which the plaintiff was one of the managers, the house was described as the stridhan property of Sailabala. The plaintiff asserted the same while he stated that the land on which the house stood was his property. The plaintiff's ease is that he got the house benami in the name of his wife Sailabala for fear of his brother Sarada who, he apprehended, might claim the house as joint property. It is true that the house was built at a time when the plaintiff and his brother Sarada were both living in joint mess with their father who was a muktear and his fear was not unfounded inasmuch as afterwards Sarada brought a partition suit against the plaintiff in which he claimed the house as joint property. The defendants resisted the suit on the ground that the house was the stridhan property of their mother Sailabala. The Subordinate Judge has found that the plaintiff had reasons for making the house in the benami of his wife. The defence was that the house was built with the money of the lady which she obtained from her father who lived in Calcutta and was in the service of a broker. We have been taken through the evidence and I am of opinion that the conclusion of the learned Subordinate Judge is correct that the plaintiff constructed the house partly with his own money and partly with some contributions which his wife obtained from her father and he called the house the stridhan property of his wife as he wanted it to be known as his wife's property while really it was his own property. The next question is whether the suit is barred by limitation. On this, the first point is whether Article 142 or Article 144, Schedule 1, Lim. Act, applies. Article 142 applies to a suit for possession of immovable property when the plaintiff while in possession of the property, has been dispossessed or has discontinued the possession. Article 144 applies to a suit for possession of immovable property or any interest therein not hereby otherwise specially provided for. Now, in the present case, the. plaintiff clearly stated in his plaint that on 28th March 1919 he was assaulted by his bob, defendant 3, and expelled from the house in the middle of the night and he dates his cause of action as arising on 29th March 1919. His case is that after his wife's death in 1913 he held the house in the benami of his sons, the three defendants, but there were quarrels between him and the sons and he was finally driven out of the house on the night of 14th Chaitra corresponding to 28th March 1919. There can therefore be no doubts that in this case, Article 142 applies, his case being that he was in possession until that date and he was driven out of possession on that date : see the cases of Maharajah Koowur Nitrasur Singh v. Nand Lal Singh (1860) 8 MIA 199, Rajah Saheb Prahlad Sein v. Maharajah Rajendra Kishor Singh (1869) 12 MIA 292, Beer Chunder Jobraj v. Deputy Collector of Bhullooah (1870) 13 WR 23 (PC), and Karan Singh v. Bakar Ali Khan (1881) 9 IA 99. In all these cases their Lordships of the Privy Council held that although the plaintiff's title is proved, the onus is on the plaintiff to show that he was in possession within 12 years of the suit. The onus is not on the defendants to show that the plaintiff lost his title by adverse possession on the part of the defendants. All the oases were discussed in Rakhal Chandra Ghose v. Durgadas Samanta AIR 1922 Cal 557.

2. The plaintiff said he was expelled from the house on 28th March 1919 and the cause of action arose from the moment when he was driven out of the house. There can be no doubt that in driving out the plaintiff, the defendants asserted their hostile possession. Indeed, as the plaintiff himself says, the house was all along in the name of the three defendants and their case is that from the death of their mother, as heirs of their mother's stridhan property they considered that the title to the house belonged to them and they allowed their father to live in the house with them because he was their father. This fact will appear clear from the conduct of the plaintiff who when the quarrel became violent himself advertised in a local paper named Pabna Hitaishi in no less than seven issues of the paper from 11th December 1918 to 12th February 1919 stating that the house in question was acquired with his own money and he had title and possession in the same, that his sons, the present defendants, were only his benamidars. This notification clearly shows the truth of the defendants' case that they had been claiming the title to the house in themselves. There can thus, in no view, be any doubt that Article 142 applies and the onus is on the plaintiff to show that he was in possession within 12 years of the suit. The suit was instituted on 25th March 1931, about 11 years 11 months and 26 days from the date of the dispossession. When the defendants have admittedly been in adverse possession for over 11 years 11 months, the onus lies heavily on the plaintiff that he was in possession within 12 years of the date of the suit. The learned Subordinate Judge has referred to the oral evidence. In my opinion, the oral evidence of the plaintiff and his witnesses is utterly unworthy of credit. The plaintiff has told innumerable lies in his evidence. He appears to have had no regard for truth in the assertion which he made in his evidence. The learned trial Judge relied mainly on the Panjika where on 14th Chaitra there is an entry that he was shoe-beaten by his son, defendant 3. The learned Subordinate Judge has accepted that entry as correct. We have carefully examined that entry and compared it with the numerous other entries appearing before that date about which there is no dispute of their correct-ness. The Panjika was 14 years old at the time of the suit. All those unchallenged entries previous to the entry in question appear to have their ink turned brown colour in the course of time. The entry in question appears to be made with fresh black ink and it has not yet turned brown with age. On the other hand, it appears that some artificial attempt was made to blur the writing. In my opinion, the entry on 14th Chaitra cannot be accepted as a true entry. Having regard to the general disregard for truth of the plaintiff, I am of opinion that this entry was inserted by him at or about the time when he instituted the suit. No reliance can be placed on it.

3. The learned Subordinate Judge has relied mainly on certain admissions in letters written to the plaintiff by defendant 2. (The judgment then considered the letters and proceeded.) From these letters, the learned Subordinate Judge has concluded that the plaintiff left the house on or about 28th March and not in previous October as the defendants had stated. Having carefully gone through the letters and considered the mind of defendant 2 who was at that time very young having lost his mother and wanting to have the affection of the father, I do 'think that these letters prove the contentions of the plaintiff that he was at Sailadham until 28th March. As to the threat in the letter of 7th January, it does not show conclusively that the plaintiff was at that time in the house. It may be that the young man hoped that there would again be reconciliation between the sons and the father and the father might gone back and in this foolish way he tried 'to justify his own part and made a foolish threat to the father. In the letter of 14th April where he says the plaintiff left the house at his own will, in my opinion, the observation is not to be taken as literally true. On the other hand, the plaintiff's story in this respect is to be believed that when he left the house he was violently turned out by his sons. He did not leave it willingly.

4. The defendants stated that the plaintiff was turned out of the house sometime in October 1918. As to that there is no documentary evidence. There is the mere statement of the defendants and their witnesses on which full reliance cannot be placed. It is to be noted that the onus is not on the defendants to show that they were in possession for over 12 years but the onus is on the plaintiff to show that he was in possession within 12 years, and unless he can show that, his suit must fail. Considering all the evidence on the side of the plaintiff and the admissions made by defendant 2 in his letters, I am not satisfied that the plaintiff's story is true that the was turned out on the night of 28th March. It is more probable that he was turned out at or about the time when he published the notice in Pabna Hitaishi, that is to say, on or about 11th December 1918. In any case, in my view, the plain, tiff has not succeeded by reliable evidence to show that he was in possession of the house within 12 years of the suit. The decree of the learned Subordinate Judge is set aside and the suit is dismissed in respect of the house mentioned in Schedule Ka to the plaint. The learned advocate, Mr. Moitra, appearing for the defendants stated that as the original plaintiff is dead and his successors are their minor half brothers and their widowed mother, the defendants do not contest the finding of the Court below in respect of the garden land in Schedule Kha. In respect of the garden land therefore, the decree of the Court below will stand. Having regard to all the circumstances, the parties will bear their own costs both in this Court and the Court below. The cross-objection not being pressed is dismissed without costs.

R.C. Mitter, J.

5. The suit out of which this appeal arises was instituted by Barada Prosad Bose on 25th March 1931. The principal defendants in the suit are three in number, namely the three sons of Barada by his first wife Sailabala. There was another defendant to the suit namely the brother of Barada who has no interest in the litigation. The subject matter of the suit are two items of property, namely a house in the town of Pabna described in Schedule Ka to the plaint and a garden in the same town described in Schedule Kha. Barada wanted to recover possession of both these properties on declaration of his title. The main defence of the contesting defendants are two in number, (1) that the title to both these properties was not in Barada but in his wife Sailabala, their mother, and (2) that the suit was barred by limitation. With regard to the question of title, the learned Subordinate Judge has found in favour of Barada. He has also decided the question of limitation in favour of Barada. In that view of the matter, he has decreed the suit. Now, in this appeal, we are not concerned with the properties described in Schedule Kha, that is to say, the garden, because Mr. Moitra, advocate appearing on behalf of the appellants, ultimately did not press his client's claim with regard to this item of property.

6. With regard to property of Schedule Ka the position is this. It stands on a piece of land which was granted in lease to Barada in the year 1899 by one of his clients, namely Sri Gobinda. The potta executed by Sri Gobinda stands in the name of Barada. His case is that in the year 1899 when he was reading for his B. A. degree in Calcutta he was married to Sailabala, the daughter of Keshab Chandra Das, that in the year 1893 he completed his legal education and began his practice as a pleader at Pabna and after having continued the practice for about six years during which he picked up a decent practice he was given this piece of land by Sri Gobinda as a recognition of the services rendered to him by Barada as his pleader. The case of Barada with regard to the building which was constructed on this piece of land in the course of three years 1901.1904 is that he picked up a decent practice at that time and with the savings from his professional income, sale of some Government promissory notes and with the help of temporary accommodation loans from his friends he built the house. The case of the defendants on this part of the case is that although the land stood in the name of Barada, the building was raised with the money of their mother Sailabala, the money which she is said to have obtained as gift from her father Keshab. It is the admitted case of the parties that the land stands in the name of Barada, but after the construction of the building, the holding was recorded in the name of Sailabala and after her death in 1913 in the name of her sons defendants 1 to 3. Barada, it also appears, in certain solemn transactions, admitted that the house and the land underneath belonged not to him but to his wife. The two solemn transactions in which he made these admissions are evidenced by Exs. A and B, namely a surety bond which he executed for duly discharging his office as Receiver appointed in a certain suit and a loan application made on behalf of Sailabala to a local Bank in which he, as the Assistant Director of the Bank from which the loan was applied for made an endorsement that the title to the said property was in Sailabala. These are the respective cases of the parties with regard to the building. The substance of the defendants' case on this head is that the house was built with the money of Sailabala with a promise by Barada that he would after the completion of the building abandon his claim with regard to the land on which the building was erected.

7. The question as to whether the funds of Barada were employed in the construction of the building or of his wife depends solely upon oral evidence. (After considering the evidence the judgment proceeded.) On this evidence, I have come to the conclusion that Keshab was not a man of means at all and he could not send any money to his daughter for enabling the house to be constructed. If any money at all was sent it must have been a small remittance. The evidence on the record points out that that must have been made not as a gift to his daughter but as assistance to his son-in-law. On this evidence, I agree with the learned Subordinate Judge that the house and the land on which it stands is of Barada and not of Sailabala.

8. The question of limitation will now be discussed. The case of Barada is that shortly after the death of his first wife Sailabala, his sons began to behave with him very badly and there were constant quarrels with them with the result that he left the house on 14th Chaitra 1325 corresponding to 28th March 1919, after his third son had roughly handled him. The case of the defendants is that Barada was turned out of the house by them in the middle of Aswin 1325 corresponding to the last part of September 1918. In order to decide the question of limitation, two questions will have to be determined. First, the time of departure of Barada from the house and secondly, the circumstances-under which he left the house. With regard to the first question, I cannot believe the evidence adduced on behalf of the defendants that Barada was turned out of the house towards the last part of September 1918, that is to say, just before the Pujas of the year 1325. (The judgment them considered the circumstances against the theory of the plaintiff's expulsion in September 1918 and proceeded.) Barada's evidence is that he left the house or was driven out of the house on 14th Chaitra 1325 at about mid-night by his third son. He has given his oath in support of his case and has examined two other witnesses on the point, namely a pleader Jatindra Mohan Bhoumik and one of his clients Tarak Nath Pramanik. It would be very unsafe to rely upon the evidence of Barada. He is a man who has no regard for truth. In one park of his deposition he said that he made a false statement in Ex B knowing it to be false. The evidence of Jatindra Mohan Bhoumik or of Tarak Nath Pramanik is not convincing. These persons would support Barada in whatever he would say and it would be very unsafe to go upon the testimony of these persons. It is plain Barada admitted in his plaint that he was out of possession for 11 years 11 months and '27 days and therefore if the case comes under Article 142, Limitation Act, the onus is very heavily on him. This is in accordance with the observation which was made by the Judicial Committee in Mohima Chundar Mozoomdar v. Mohesh Chundur Neogi 16 IA 23. The only documentary evidence which support Barada's case that he left; the house on 14th Chait 1325 are the two entries Exs. 23 and 23-A in his Panjika of the year 1325 under the dates 14th Chait and 15th Chait. Barada was cross-examined with regard to these two entries. He would first of all say that it was his practice to enter every important event in his Panjika. He was at once confronted and had to admit that his second marriage with Dhirendra Bala Basu which had occurred on 13th Falgoon 1325, which according to him was an important event, was not entered in the Panjika. He was also cross-examined further and had to admit that after those entries dated 14th and 15th Chaitra there were no other entries in the Panjika. He has not produced Panjika of earlier years or later years to support his case that it was his practice to enter every important event in his Panjikas. There are numerous entries under his hand in this Panjika of 1325. This Panjika is a sort of account-book of his where he has entered various petty items of expenditure. All those entries relating to payments for oil and so forth must be genuine entries, but the ink of those genuine entries have turned brown but the entries Exs. 23 and 23-A look to be fresh without indicating any effect of time upon them. If these two entries are rejected, there remains nothing on the record by which Barada can discharge the heavy onus which was on him, after his admission in his plaint, that he was in possession within 12 years of the suit.

9. With regard to the manner of his dispossession, there cannot be any doubt. Barada has stated in more places than one in his deposition that he was driven out by his sons, and that after a beating. There cannot be any doubt that his sons had driven him out of the house on the footing that he had no business to be in that house which they claimed to be their mother's property and which they had got by inheritance from her. No doubt, the claim to the house as their mother's property is not a true claim, but that Barada was driven out under such a claim by the sons there cannot be any doubt. Prom the correspondence, which passed between the first two sons of Barada and Barada, it is clear that in 1915, the relations between the father and the sons were normal relations. Towards the end of the year 1916 trouble began and Barada was not treating his sons as be ought to have and the sons were not showing that respect to him which a dutiful son is expected to show. But in the year 1917, the matter came to a pass. (The judgment then considered the correspondence and proceeded.) He (the plaintiff) issued seven advertisements in seven successive issues of the Pabna Hitaishi in which he formally claimed the property to be his and repudiated all claim on the part of his sons that the garden and the house were their mother's properties. Although it may be that the sons did nod assert to the face of Barada that the property was theirs being the inheritance from their mother, there cannot be any doubt that Barada knew from the conduct of the sons that they were claiming an adverse title to the house in dispute and when Barada was eventually driven out of the house after a beating by his third son, there cannot be any doubt that he was made to leave on the supposition that he was a trespasser in the house and had no right to live in the same. The manner in which Barada was made to leave the house cannot in my opinion have any other interpretation than that he was dispossessed from the house by his sons. In this view of the matter, Article 142 would be applicable to the case and inasmuch as Barada has failed to prove, the onus being on him, that he was in possession within 12 years of the suit his claim to the house must be dismissed. In this respect, it does not matter in the least whether the defendants came with a false story as to the actual date when Barada was turned out of the house. In this view of the matter, I agree with my learned brother that the claim to the house must be dismissed.

10. As Mr. Moitra abandoned the claim with regard to the garden which is described in Schedule Kha to the plaint, the decree of the learned Subordinate Judge in respect of that property will stand. I also agree with the order for costs passed by my learned brother. The cross-objection is not pressed. It is dismissed without costs.


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