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Jogendra Nath Saha Chaudhury and ors. Vs. Mahraja Jagadindra Nath Roy Bahadur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal577,67Ind.Cas.170
AppellantJogendra Nath Saha Chaudhury and ors.
RespondentMahraja Jagadindra Nath Roy Bahadur
Cases ReferredMuthuraku Thevan v. Robert Gordon Orr
Excerpt:
civil procedure code (act v of 1908), sections 18 and 21 - jurisdiction, territorial, doubt as to--decree, setting aside of--bengal tenancy act (viii of 1885), section 103b(3)--record of rights--presumption as to correctness--burden of proof--adverse possession--land subject to destructive action of river--diluvion and re-formation--conditions to be fulfilled--landlord and tenant--adverse possession, nature of. - .....plaintiff. the maps exhibited in the trial court, namely, the survey maps made in 1854 of edalair, kandi, khairaddi kandi, maldah, dhalah and dhurai as also the duarah survey map made in 1869 show conclusively that edalair kandi or khairaddi kandi is a distinct mouzah from maldah, this is also borne out by the mouzawar register and the mahalwar register of pergana chapila and the general register of revenue-paying lands. it is further corroborated by a large body of oral evidence on the record, and for our present purpose it is sufficient to refer specially to the statement of raj mohan das, one of the witnesses examined by the defendants, who asserted in examination-in-chief that khairaddi kandi before diluvion was high enough to be beyond the reach of water even during the rains, and.....
Judgment:

Asutosh Mookerjee, J.

1. The subject matter of the litigation which has culminated in this appeal is a large tract of land known as Mauzi Edalair Kandi otherwise called Khairaddi Kandi. The plaintiff-respondent, the Maharaja of Natore, claims the disputed property as comprised in his Zemindari which formerly bore Touzi No. 419 of the Collectorate of Rajshahi and now bears Touzi No. 2166 of the Collectorate of Pabna. In 1910, in the course of Cadastral Survey proceedings under the tenth Chapter of the Bengal Tenancy Act, a dispute arose between the plaintiff and the defendants, who claimed that they were in possession of the land now in suit as comprised in a patni taluk known as Goalnagar Maldah held by them under the Maharaja of Natore. The objection taken by the defendants under Section 103. A of the Bengal Tenancy Act was allowed by the Assistant Settlement Officer on the 5th September 1911. The Record of Rights drawn up on this basis was finally published on the 1st August 1914. On the 14th April 1919, the Maharaja of Natore instituted the present suit for establishment of his title, for declaration that the disputed village was not comprised in the patni taluk held under him by the defendants, for recovery of possession with mesne profits, and for incidental reliefs. The defendants resisted the claim on the ground that the Revenue Authorities had correctly held that the disputed village was comprised in their patni, and that if it were found to lie beyond the ambit of the patni, the defendants had acquired a good title by adverse possession for the statutory period. The defendants farther urged that the Subordinate Judge of Pabna had no jurisdiction to entertain the suit as the land was situated within the District of Faridpur. The Subordinate Judge overruled the contentions of the defendants and decreed the claim with costs. On the present appeal, the decision of the Subordinate Judge has been assailed on three grounds, namely, first, that the Trial Court had no jurisdiction to entertain the suit; secondly, that the land is comprised in the patni taluk held by the defendants and thirdly, that if the land be found to have been situated beyond the limits of the patni taluk, the defendants have acquired an indefeasible title by adverse possession for the statutory period.

2. The first ground is plainly unsubstantial. Section 13(1) of the Bengal Civil Courts Act, 1887, lays down that the Local Government may, by notification in the official Gazette, fix and alter the local limits of the jurisdiction of any Civil Court under the Act. The jurisdiction list dated the 3rd June 1908 shows that the District of Pabna, where the Subordinate Judge exercise jurisdiction, comprises all the mouzah (inclusive of the mouza in suit) demarcated and surveyed in the Survey of 1850 55. Consequently, no weight can be attached to the contention of the defendants that the river Padma is the boundary between the districts, and that the river has so shifted in recant years as to transfer the disputed land from the jurisdiction of the Pabna Court to the jurisdiction of the Faridpur Court. But even if it were conceded that the shifting river should be accepted as the boundary for the purpose of determining the jurisdiction of a Court; under the Bengal Civil Courts Act, 1887, the objection taken by the defendants is futile. Their contention is that the old main stream of the river to the south has become a shallow small stream and an old shallow stream to the north has become the new main stream. The evidence adduced in support of this allegation is not satisfactory, and certainly not conclusive. As no map was prepared for this purpose, it is impossible for us to say which is the main channel and which is the subsidiary channel of the river, Besides, as was pointed out by this Court in the case of Midnapur Zemindary Co. v. Kumar Naresh Narain Roy 65 Ind. Cas. 833 : 33 C.L.J. 497 at p 499, where a similar objection was unsuccessfully urged, the contention of the defendants cannot possibly prevail in view of the provisions of Sections 18 and 21 of the Civil Procedure Code, even if it be assumed that it is doubtful whether the property lay within the jurisdiction of the Pabna Court or the Faridpur Court, the decree of the Subordinate Judge cannot be set aside, as it has not been suggested much less established, that there has been a failure at justice. The first contention must consequently be overruled.

3. The second ground raises the question, whether the disputed village which is admittedly known as Edalair Kandi or Khairaddi Kandi is comprised in the patni taluk Goalnagar Maldah which is held by the defendants under the Maharaja of Natore, The burden of proof lies prima facie upon the plaintiff to establish the incorrectness of the entry made in the finally published Record of Rights which must be presumed to be correct until proved by evidence to be incorrect under Sub-section (3) of Section 103 B of the Bengal Tenancy Act. But for this circumstance, it could not be presumed that because the defendants hold a patni taluk under the plaintiff, a particular tract in dispute is comprised within the tenure. Protap Chandra Roy v. Judhister Das 23 Ind. Cas. 69 : 19 C.L.J. 408 : 19 C.W.N. 143, Sheodeni Roy v. Chatoorbhuj Roy 8 Ind. Cas.785t 12 C.L.J. 376, Gopini Debi v. Lokenath Tewari 11 Ind. Cas. 693 : 19 C.W.N. 140. But where, as in the present case, evidence has been adduced by each of the contestants in support of their respective cases and the relevant facts are before the Court, the question of burden of proof is immaterial, and importance should not be attached to the question on whom the initial onus lay; see the observations of Viscount Haldane in Kundan Lal v. Begam-un-nisa 47 Ind. Cas. 337 : 22 C W.N. 937 : 8 L.W. 233 (P.C.) and of Sir Lawrence Jenkins in Seturatnam Aiyar v. Venkatchala Gounden 56 Ind. Cas. 117 : 47 I.A. 76 : 43 M. 567 (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.B. 578 : 18 A.L.J. 707 : 25 C.W.N. 485 (P.C.). When we approach the evidence from this standpoint, what is the position? Two facts are undisputed, namely, first that the disputed tract is situated within the Zemindary of the plaintiff, and secondly, that the defendants hold under the plaintiff a patni taluk known as Goalnagar Maldah. The dispute is whether the village in controversy which is known as Edalair Kandi or Khairaddi Kandi is comprised within the Patni Taluk Goalnagar Maldah. The plaintiff asserts that the answer should be in the negative. The defendants contend that Goalnagar Maldah includes Edalair Kandi or Khairaddi Kandi and also Maldab. The Subordinate Judge has found that the case for the defendants has been completely negatived by the evidence adduced on behalf of the plaintiff. The maps exhibited in the Trial Court, namely, the Survey maps made in 1854 of Edalair, Kandi, Khairaddi Kandi, Maldah, Dhalah and Dhurai as also the Duarah Survey map made in 1869 show conclusively that Edalair Kandi or Khairaddi Kandi is a distinct mouzah from Maldah, This is also borne out by the mouzawar register and the mahalwar register of Pergana Chapila and the general register of revenue-paying lands. It is further corroborated by a large body of oral evidence on the record, and for our present purpose it is sufficient to refer specially to the statement of Raj Mohan Das, one of the witnesses examined by the defendants, who asserted in examination-in-chief that Khairaddi Kandi before diluvion was high enough to be beyond the reach of water even during the rains, and that to its north lay the Mouzah Atravi and to its south lay the Mouzah Goalnagar Maldah. There could be no doubt as to the meaning of the statement made by the witness, because be added that there were pillars to demarcate the boundary between Khairaddi Kandi and Goalnagar Maldah. There can, in our opinion, be no room for doubt that the Subordinate Judge has correctly held that Goalnagar Maldah is merely another name for Maldah and that Edaliar Kandi or Khaireddi Kandi is a quite distinct village. It is not disputed that one Bhairab Chandra Mazumdar was the holder of the patni under the Maharaja of Natore and that it ultimately passed into the hands of Fakruddin Ahmed alias Azimuddin Chaudhury. The patni taluk was sold for appears of rent, and on the 5th December 1881, the defendants became purchasers at the execution sale in the name of their officer Beni Madhah Chaki. The patni taluk which was thus brought to sale was expressly stated in the sale certificate as situated in Goalnagar Maldah, prima facie, then, the defendants are entitled to possession of lands comprised in Goalnagar Maldah, and they must consequently prove that the disputed land which is known as Edalair Kandi or Khairaddi Kandi is part and parcel of Goalnagar Maldah, This they have signally failed to establish. Reliance has been placed by the defendants on the plaint dated 13th June 1882, the decree of the Trial Court dated 17th January 1883, and the decree of the Appellate Court dated 21st September 1883 in a suit instituted by the Official Trustee of Bengal as trustee to the estate of one Pogose of Calcutta against some persons for recovery of possession of twelve bighas of land, In the plaint it was stated that the lands then in dispute were situated in 'Goalnagar Maldah commonly called Khairaddi Kandi,' The title of Pogose is, however, traced to an execution sale held on the 19th November 1879 for the realisation of a rent decree obtained by Pogose against Fakruddin Ahmed alias Azimnddin Chaudhury. The subject-matter of that sale was land and buildings of what was known as the Maldah Factory, described as situate in Mouzah Khairaddi Kandi. This clearly does not establish that Khairaddi Kindi was in fact identical with Goalnagar Maldah; indeed, it may be a matter for controversy whether not with standing the comprehensive terms of Section 13 of the Indian Evidence Act as explained in the decision of the Judicial Committee in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani 29 I.A. 24 : 29 C. 187 : 6 C.W.N. 886 : 12 M.L.J. 83 : 4 Bom. L.R. 167 : 8 Sar, P.C.J. 224 (P.C.) the litigation between Pogose and his adversaries could be treated as an instance in which the right now in dispute was claimed, recognised or exercised. Apart from this, we have the fact that notwithstanding the sale of the factory on the 19th November 1879, the patni was sold at the instance of the Maharaja of Natore nearly two years later on the 5th December 1881. We agree with the Subordinate Judge that this tends to show that Azimuddin Chaudhury held the factory and the patni taluk in two distinct rights; the first passed to the Official Trustees as Trustee to the estate of Pogose, the second ultimately passed to the present defendants. This is also confirmed by the circumstance that the objection urged to the claim of the Official Trustee that his title had been superseded by that of the auction-purchaser of the patni taluk was not upheld. The case for the defendants is not further advanced by the recitals (assuming them to be admissible in evidence) contained in the darpatni lease granted by one of them to Prosanna Kumar Ganguly on the 12th September 1882, and, the decree dated 6th November 1903 in a partition suit amongst members of their family; these recitals do not contain even an assertion of right or claim with regard to the property now in suit, but only an allegation that a tract of land is known by one of three alleged names Mouza, Goalnagar Maldah alias Edalair Kandi commonly called Khairaddi Kandi.' There is, in our opinion, no escape from the conclusion that the Subordinate Judge has correctly held that the lands of Edalair Kandi or Khairaddi Kandi are wholly outside the lands of the Patni taluk Goalnagar Maldah or Maldah held by the defendants under the Maharaja of Natore, The second ground consequently fails.

4. The third ground raises the question, whether the defendants have acquired indefeasible title to the disputed land by adverse possession for the statutory period. The hypothesis that they have acquired such title is found hedged all round by inextricable difficulties, when we bear in mind a fundamental fact, which is admitted by both the parties, namely, that the disputed site has been subject to the destructive action of the river Padma. The case for the plaintiff is that the diluvion commented shortly after the revenue survey operations of 1854 and that the land was reformed towards the end of 1907 or the early part of 1908. The case for the defendants is that the diluvion began only so late as 1886, and that the land was re formed in 1904. The determination of the question, when the diluvion commenced and when the re-formation took place, depends upon the appreciation of conflicting oral evidence The Subordinate Judge has, upon a careful analysis of that evidence, held that the dates indicated by the respective parties cannot be accepted as absolutely correct. He has found that the testimony of the witnesses points to the conclusion that the diluvion commenced about the year 1890 and that the re formation took place during the early months of 1908. The evidence has been plated before us, and we see no reason to differ from the view adopted by the Subordinate Judge. The question of acquisition of title by adverse possession must consequently be investigated on this basis. In this connection, it is important to bear in mind the decision of the Judicial Committee in Secretary of State for India v. Krishnamoni Gupta 29 C. 518, 29 I.A. 104 : 6 C.W.N. 617: 4 Bom L.R. 537 : 8 Sar. P.C.J. 269 (P.C) which overruled the case of Koly Churn Sahoo v. Secretary of State for India 6 C.725 : 8 C.L.R. 90 : 4 Shome L.R, 95; Ind. Dec. (N.S.) 470 decided by a Full Bench of this Court in 1881. Lord Davey relied upon the earlier decision of the Judicial Committee in Trustees & Agency Company V. Short 1888 13 App Cas. 793 : 58 L.J.P.C. 4 : 59 L.T. 677 : 37 W.R. 433 : 53 P. 132, in support of the proposition that on the dispossession of a trespasser by the vis major of the floods, the constructive possession of the land is in the true owner; in other words, the land after submersion becomes derelict, and so long as it remains submerged, no title can be made against the true owner. If we apply this elementary principle to the circumstances of the present case, it follows that the defendants, in order that they may succeed on the strength of title by adverse possession, must prove, either that they had by adverse possession acquired such title since the date of re-formation and before the commencement of this litigation, or, that they had acquired such title to the extinction of the title of the true owner before the date of the diluvion. As regards the first alternative, the defendants cannot possibly succeed, because at the date of the institution of the suit on the 14th April 1919, only eleven years had elapsed from the date of the re-formation. As regards the second alternative, the defendants are in a similar jeopardy. The best attested instances of alleged possession do not extend beyond the 3rd February 1881 consequently not more than nine years had elapsed when the diluvion took place in 1890. There is thus no escape from the conclusion that even if we assume that the defendants were in actual occupation, their possession did not extend over the statutory period of twelve years either before the diluvion or after the reformation, in addition to this, it is equally clear that the possession they allege does not satisfy the test formulated by Lord Robertson in Radhamoni Debi v. Collector of Khulna 27 C. 913 : 27 I.A. 136 : 4 C.W.N. 597 : 2 Bom. L.R. 592 : 7 Sar. P.C.J. 714 : 14 Ind Dec. (N.S.) 617 (P.C.), namely, that the possession must be adequate in continuity, in publicity and in extent of area to take the title out of the true owner. Reference may also be made to the decision in Jogendra Nath Roy v. Baladeo Das 12 C.W.N. 127 : 35 C. 96 : 6 C.L.J. 735, which is an authority for the proposition that the possession required must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the Statute of Limitation. See also Amrita Sundari v. Sherajuddin 29 Ind. Cas, 156 : 19 C.W.N. 565. This is specially necessary in a case between landlord and tenant, because as explained in Ishan Chandra v. Ra a Ramranjan 2 C.L.J. 125 the tenant's possession of the lands encroached upon can commence to be adverse only when the title adverse to the landlord is asserted or the landlord becomes aware of the encroachment; this is essential to enable the tenant to acquire title to a limited interest by adverse possession thereof; See also Gopal Krishna v. Lakhiram 14 Ind Cas. 212 : 16 C.W.N. 634, Sarada Kripalal v. Akhil Chandra Biswas 41 Ind. Cas. 530 : 28 C.L.J. 18 : 21 C.W.N. 903, Muthuraku Thevan v. Robert Gordon Orr 10 Ind. Cas. 575 : 35 M. 618 : 21 M, L.J, 615 : 10 M.L. T.12. The defendants thus find themselves in a situation of much embarrassment from the points of the view indicated and it is superfluous to investigate in detail how far the evidence of alleged possession is trustworthy, but we may add that no solid arguments have been advanced to shake the conclusion of the Subordinate Judge that evidence is on the whole unreliable, There is little doubt that so far back as in 1881, steps were taken by them to fabricate evidence of possession by the acceptance of collusive kabuliyats which either related to fictitious tenancies or to lands situated beyond the limits of Khairaddi Kandi alias Edalair Kandi but designedly misdescribed as comprised within the ambit of its boundaries, We agree with the Subordinate Judge that the defendants have signally failed to establish their alleged adverse possession of the disputed lands so as to extinguish the title of the true owner.

5. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs,

Buckland, J.

6. I agree.


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