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Durganath Bhattacharjya and ors. Vs. Harkishore Chakrabarty and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1929Cal218
AppellantDurganath Bhattacharjya and ors.
RespondentHarkishore Chakrabarty and ors.
Cases ReferredGoaool Bagdi v. Debendra Nath Sen
Excerpt:
- .....whether notices under section 167, ben. ten. act, have been properly served on them ?17. if the suit lands form part of the taluk then certainly the appellants are entitled to possession of them by virtue of their purchase in auction sale if not barred by limitation and provided the holdings of the respondents are not encumbrances, or, if those holdings are encumbrances, provided notices under section 167, ben. ten. act. have been duly served upon them.18. it appears that beyond the settlement record-of-rights, there is no evidence as to what lands exactly formed the taluk. the superior zemindar has been made a party (defendant 11) and on his behalf it is claimed that the taluk lands are as shown in the settlement records. neither of the courts below are, however, prepared to rely.....
Judgment:

Suhrawardy, J.

1. This appeal by defendants 1 to 5 arises out of a suit for recovery of possession of some lands which the plaintiffs claim as appertaining to Taluk No. 164 purchased by them at a rent sale in 1906. The facts of this complicated litigation may shortly be given. Under the Maharaja of Tipperah there was a taluk No. 164 standing in the name of one Jay Narain Sarma and called after his name taluk Jay Narain Sarma. This Jay Narain had also a niskar called niskar Jay Narain Sarmar Jay Narain Sarma left two sons Sib Prosad and Ram Gobinda. Sib Prosad had also acquired an agat taluk called agat Sib Prosad Taluk Ram Keshab. Agat taluk has been explained by the learned) Judge in his judgment as meaning:

A specific block of land carved out of a taluk. The owner of an agat need not enter into direct relations with its superior landlords, but he pays the proportion of the rent due from him in respect of agat to the owner of the taluk. On failure to pay this due proportion the owner of the taluk has to pay it himself to preserve his taluk from sale, but he can recover the proportion from the agatdar in a contribution suit.

2. The taluk No. 164 was sold for arrears, of rent and purchased by the Choudhuries of Markuta in 1863. About 12 years, after they had purchased, one Anandamoyee, widow of one of the three sons of Sib Prosad, brought a suit for recovery of some lands on the allegation that they were sinker lands of Jay Narain Sarma and the a gat lands of agat Sib Prosad. The suit was decreed or compromised by a compromise decree Ex. F. By that decree Anandamoyee got one-third of the lands which she claimed as belonging to niskar Jay Narain,. The other lands claimed in the suit went to the Choudhuries. Thereafter one Gurudas Muhari purchased Anandamoyee's interest in the decree and one Gurudas Barman purchased one-third share, in the niskar belonging to some other members of Jay Narain's family. Subsequently the three parties Gurudas Muhari, Gurudas Barman and the Choudhuries came to an arrangement under which Gurudas Muhari obtained 16 annas interest by transfer from the other parties in 12 specific plots of niskar Jay Narain Sarma. Then Gurudas Barman and Gurudas Muhari respectively conveyed to the Choudhuries their one-third share in the rest of the lands described as niskar in Ex. F, and the Choudhuries thereby obtained an interest in the Niskar land also. Between 1888 and 1894 the defendants purchased in execution of decrees the interest of the Choudhuries which was described in the sale certificates as niskar and agat Sib Prosad. Between 1890 and 1895 Earn Charan and Bhairab Shaha whom we will call the Shahas hereafter purchased in execution of decrees and by private conveyances the interest of the Choudhuries in taluk Jay Narain Sarma. In 1900 the Shahas brought a suit against the defendants' father to recover some lands as taluk Jay Narain. That suit was withdrawn. Then in 1906, Taluk Jay Narain Sarma (taluk No. 164) was sold for arrears of rent by the Maharaja of Tipperah and purchased by the plaintiffs. This suit was instituted in October 1918 for recovery of some lands which the plaintiffs claim to appertain to the taluk purchased by them. The defence was that the land in suit belonged to the niskar Jay Narain and agat Sib Prosad and did not form part of the plaintiff taluk. It was also maintained that if they did, the defendants had acquired good title to them by adverse possession for more than 12 years.

3. On these facts the learned Subordinate Judge without going minutely into the question of title held that the defendants were in adverse possession of the land for more than 12 years ; and in this view dismissed the plaintiffs' suit. On appeal the learned Additional District Judge of Tipperah modified the decree of the trial Court and gave the plaintiff a decree in respect of some plots and remanded the case to the trial Court for enquiring into-the title in respect of some other plots. Defendants 1 to 5 have appealed and it is contended on their behalf that the view taken by the trial Court is correct and ought to be maintained.

4. On the facts above stated the learned Judge has come to the following findings; (a) that it is not possible to find out definitely the extent either of the taluk or of the niskar ; (b) that the agat somehow or other had passed to the Choudhuries or they had acquired title to it by adverse possession it having become a part of their taluk ; (c) that Ex. F, the compromise decree in Anandamoyee's suit, is-to be preferred to other evidence in finding as to what lands belong to the niskar at such distant date ; (d) that the settlement record so far as it is inconsistent with Ex. F, must be considered to be incorrect though it mentions some plots in suit land as appertaining to the agat ; bob it must now be held that they have become part of the taluk and have ceased to have a separate entity ; (e) as to possession, in the circumstances of the present case there can be no question of adverse possession. In this view the learned Judge passed a decree in favour of the plaintiffs as above stated. It is admitted that some plots in suit belong to the defendant's niskar and have been excluded from the decree.

5. This appeal may be disposed of on the short ground of possession. The argument which the learned District Judge employed to support his finding that there could be no question of adverse possession in the present suit is, that at one time the Choudhuries held the niskar and the taluk both together. At that time there could be no question of adverse possession between the two estates. They elected to treat some lands as appertaining to the taluk and some as niskar. These lands were sold at different times to different parties the defendants and the Shahas There cannot, therefore, be any question of adverse possession between these two parties. It is difficult to understand the process of reasoning adopted by the learned Judge in holding that the defendants are not entitled to claim adverse possession in the present suit. It is intelligible that so long as the taluk and the niskar were held by the same person the Choudhuries no question of adverse possession could arise nor could it be claimed by one against the other. But the same reasoning cannot be applied when the niskar and the taluk become vested in different parties. There was no privity of estate between the Shahas and the defendants nor was there any such jointness of possession as to stop the running of time against each party. The learned Judge holds that the land belonging to the niskar or to the agat taluk became part of the taluk No. 164 by adverse possession by the Choudhuries and passed along with the taluk to the plaintiffs. If that was so, there does not seem to be any reason for not holding that the lands which were thus acquired by adverse possession and formed part of the taluk being adversely possessed by other parties became permanently severed from the taluk. In one part of his judgment the learned Judge observes that since the possession of the defendants was never that of trespassers there could be no adverse possession in their favour. This is not a correct statement of the law. Possession if not permissive, is adverse. It may be adverse even to the vendor in a case between the vendor and the vendee. Sambhu Bhai Karsandas v. Shib Lal Das Sadashivdas [1879] 4 Bom. 89. But it is not necessary to go so far in the present case. 'The possession of the defendants as against the Shahas was clearly adverse whether they possessed it as adverse to the taluk or as part of their niskar.

6. The learned Judge again becomes unintelligible when he says that the possession of the defendants could not be treated as adverse as neither set of transferrers could sue the other for recovery of possession. He further goes to elucidate this point and observes that if a private purchaser does not obtain possession of a part of the land purchased, his remedy is to sue his vendor for compensation or to avoid the contract altogether. Similarly a purchaser in an execution sale has remedy given to him under the Civil Procedure Code of having the sale set aside and claiming a refund of the purchase money. This view also cannot be supported. The remedy suggested by the learned Judge may be open to the purchaser but it does not take away his right of asserting the title of his vendor which he has obtained by his purchase. There is no question that the defendants were in possession of the lands for a much longer period than 12 years. Whether they were possessing this land as appertaining to the niskar or to the agat taluk or as against the owner of the taluk No. 164 they have acquired a good title to those lands by adverse possession. I take this view on the facts of this case relating to possession without considering the question of title as to which of the lands in suit appertain to the taluk.

7. It is a moot question whether a purchaser at a rent sale or a revenue sale obtains along with the estate the accretion to the estate caused by encroachment by the late holder of the estate. For it is said that a purchaser at such a sale purchases the estate as it stood at, its creation. But this point though suggested in the lower Court was not raised and discussed before us and I do not propose to deal with it any further.

8. The learned Subordinate Judge in the trial Court held that the defendants acquired a good title to the lands in suit by adverse possession and since such adverse possession was an encumbrance it must be avoided under the law and the attempt to avoid it by the plaintiffs failed. After purchase of the taluk in rent sale the plaintiffs served notices on the defendants under Section 167, Ben Ten. Act. The learned Subordinate Judge found on an examination of the evidence that notices were not properly and legally served. The learned District Judge in the view he took of the facts and of the law governing the case did not consider it necessary to examine in detail whether the notices under Section 167 were properly served on the defendants or not. But he observes that if it were necessary he would agree and for the reason given by the Subordinate Judge in holding that such notices were not properly served on defendants 1 to 5.

9. Mr. Chakraburty for the respondent, however, wanted to be heard on his cross-objection, namely, on the question of service of notice under Section 167, Ben Tenancy Act. Both the Courts below have found that the service was not legal and proper. The learned Subordinate Judge thoroughly went into the evidence in this case and found facts on which he based his finding that notices under Section 167 were not properly served. The learned District Judge in his judgment does not refer to the evidence in detail but expresses his concurrence with the findings of the trial Court on the issue relating to the service of notice. The learned Subordinate Judge found first that there was no separate service of notices on the four encumbrancers who are the defendants in the suit: secondly, defendant 4 was a minor, 15 years of age, and notices ought to have been served upon him also whereas notice was served upon his mother as guardian: thirdly, all due and reasonable diligence was not used to serve the defendants with notices: defendant 4 not having been found in the house and there being no one authorized to accept notices on their behalf, the peon ought to have affixed a copy of the notice on some conspicuous part of the house in which the defendants ordinarily resided. Under the rules framed by the Local Government which have the force of law notices under Section 167 are to be served in the manner provided for service of summons in the Civil P.C.

10. It was found by the learned Subordinate Judge that the peon went to the spot with only one notice in which the names of the defendants were written. He offered the notice to one Mohes who refused to accept it on the ground that he had no authority to do so. On which the copy of the notice was left with Mohes though he refused to take it and the peon returned without any further attempt to effect a proper service. The peon had no spare copy of the notice to affix at the outer door of the defendant's house. The learnsd Subordinate Judge further found that defendants 1, 2 and 3 one of whom was a well-known pleader of Comilla were not there and they were at Comilla and other places for the purpose of carrying on their profession. The plaintiffs being the residents of the village no doubt knew all about their whereabouts but took no steps to have the notices properly served on them In fact he found that the circumstances under which the procedure laid down by Order 5, Rule 17, Civil P.C. should be followed did not exist. With regard to service on the defendants the learned Subordinate Judge refers to Order 5, Rule 11 which shows that service of summons-shall be made on each defendant As regards defendant 4 who is a minor the learned Subordinate Judge holds that though there is no express provision in the Civil Procedure Code with regard to service upon the minor the authorities are in agreement that the procedure laid down for the service of processes upon adult defendants should be followed also in the case of a minor and this has not; been done. With regard to the service of notices separately on each defendant, the learned advocate for the respondent argues that a joint notice under Section 167 is enough to satisfy the requirements of law and has referred us to the case of Jogabundhu Mujumdar v. Rashamanjan Dassya [1901] 5 C.W.N. 272. In that case there was a joint notice. But it does not appear that there was a separate notice also. Besides, the judgment does not appeal to us as of a weighty character inasmuch as the learned Judges say that no form of notice under Section 167 is laid down. But it would appear of a reference to Mr. Surendra Chandra Sen's book on the Tenancy Act at p. 706 that a form has been prescribed of a notice under Section 167. The learned advocate further argues that a strict observance of the rules of service as given under Order 5, Civil P.C., need not be followed in the case of service of notice under Section 167.; and he has referred us to some cases which have no bearing on the point. We are not satisfied that the view urged is correct.

11. Lastly, Mr. Chakravarti for the respondent has argued on the authority of Gopinath Biswas v. Kadha Shyam [1920] 24 C.W.N. 657 and Easin v. Inti Jennessa Bibi [1920] 24 C.W.N. 659 that he should be allowed adecree in this case with liberty to apply to the Collector for a fresh and proper service of notice under Section 167, Ben. Ten. Act. It is no doubt true that if a notice is not properly served the plaintiffs are entitled to have a fresh service through the Collector ; and it has also been held in those cases that where the plaintiff did not know of the encumbrance and brought a suit to eject the encumbrancer as a trespasser and subsequently it transpired that there was an encumbrance, he could be given a decree subject to the annulment of the encumbrance. We are not prepared to apply that principle to this case as it is not a case where the plaintiff did not know the existence o the encumbrance ; and when he came to know that the service of notice was not proper he should have taken necessary steps to have the proper service made. We think that the view taken by the Courts below on the question of service of notice is correct.

12. The result of all the above considerations is that the cross-objection is dismissed and the appeal is allowed, the decree of the lower appellate Court set aside and that of the Court of first instance restored with costs in all Courts.

13. The Maharaja of Tipperah (respondent 4 defendant 11 in the suit) has been made a party but no relief seems to have been claimed against him. The appellants before us agree to leave all the questions in controversy in this suit open so far as the Maharaja in concerned. We think that in the circumstances of this case the interest of the Maharaja who is not entitled to immediate possession of the lands in suit should not be affected by any decision arrived at in this case.

Jack, J.

14. This appeal has arisen out of a suit by the purchasers of a tenure Joy Narain Sarma Taluk No. 164. The taluk was sold in execution of a decree for rent and purchased by the Chou-dhuries of Merkutia in 1269. In 1300 and 1301 Earn Charan and Bharat Shaha purchased the taluk from the Choudhu-ries and auction-purchasers from them in execution of mortgage decrees: c.f. Exs. 30, 31 and 79. The taluk was sold for arrears of rent on 22nd October 1906, and was purchased by the plaintiff-appellants who got delivery of possession in 1908 but did not actually get possession of the suit land and, therefore, this suit has been brought for recovery of possession of the suit land as belonging to the taluk.

15. The respondents maintain that the land in suit does not belong to the taluk. That part of it belongs to nishkar Joy Narain Sarma, and part of it to agat Shib Prosad of taluk Rai Keshab being lands of which the Chaudhuries were also in possession, and which were subsequently purchased by the respondents' predecessors at sales in execution of mortgage and money decrees between the years 1295 and 1301: c.f. Exs. M, O.Q.S.D. and E.

16. The questions which arise therefore are:

(1) Whether the lands in suit are part of the taluk No. 164 ?

(2) If so, whether the holdings of the respondents are incumbrances ?

(3) If they are incumbrances whether notices under Section 167, Ben. Ten. Act, have been properly served on them ?

17. If the suit lands form part of the taluk then certainly the appellants are entitled to possession of them by virtue of their purchase in auction sale if not barred by limitation and provided the holdings of the respondents are not encumbrances, or, if those holdings are encumbrances, provided notices under Section 167, Ben. Ten. Act. have been duly served upon them.

18. It appears that beyond the settlement Record-of-Rights, there is no evidence as to what lands exactly formed the taluk. The superior zemindar has been made a party (defendant 11) and on his behalf it is claimed that the taluk lands are as shown in the settlement records. Neither of the Courts below are, however, prepared to rely entirely on these records. The learned Subordinate Judge relies on the Record-of-Rights except where it is in conflict with a compromise decree obtained by Anandamoyi (Ex. F) showing that certain of the lands in suit belong to the nishkar Joy Narain Sarma, but he also holds that the lauds of Shib Prosad agat referred to in that decree should be considered to be lands of taluk 164 or lands which have accrued to the taluk by adverse possession, The appellate Court came to the same conclusion as regards the lands referred to in Ex. F.

19. In the compromise Ex. F the Choudhuris practically admitted that certain of the plots in suit belonged to the nishkar Joy Narain Sarma, and relinquished them as such to the predecessor of the defendants. If these lands really belong to the taluk as found by the settlement authorities, then, in parting with them as nishkar lands, the Choudhuris in reality created interests adverse to the taluk which have become by lapse of time encumbrances of the taluk, and before the appellants can get possession of these lands they must show that notices under Section 167, Bengal Tenancy Act, were properly served. The same reasoning would apply to the agat lands. The defendants' father purchased them in an auction sale in execution of a decree against the Choudhuris in 1891. In the sale certificate Ex. D the lands are described as belonging to the agat Shib Prosad. In the compromise decree too the lands were retained by the Ohoudhuris as belonging to the agat. In these circumstances I see no reason for not accepting the settlement record that they did in fact belong to the agat especially as the superior zemindar does not claim that they belong to the taluk 164 since he claims according to the settlement Record-of-Rights. The onus is obviously on the appellants if they wish to dis-qpossess 'the respondents to show that the lands belong to the taluk 164, if they fail to do so they are not entitled to get possession and, as regards these Shib Prosad agat lands, I certainly think they have failed to show that they belonged to the taluk. Their claim in respect of these lands must therefore foil.

20. As regards the nishkar lands both the lower Courts have given reasons for relying on the compromise decree (Ex. F) rather than on the Record-of-Rights. There is evidence showing that in a number of transactions these lands were claimed, and bought and sold as nishkar lands sinee 1282 B.S. Here again the onus was on the plaintiffs to show that these lands belonged to'the taluk and the Courts below have held that the presumption arising from the Record-of-Rights was rebutted as regards the lands relinquished as nishkar by the compromise decree Ex F. But even if originally belonging to the taluk, these lands and the remaining lands in suit which the 'defendants have been holding as nishkar since 1300 B.S., would certainly be encumbrances on the taluk by virtue of adverse possession. I cannot accept the learned Judge's reasoning in this connexion. He holds that in this case there was no adverse possession because there was no one who could claim any title to these lands as against the defendants. But this is not so. When the Sahas purchased the taluk, they became entitled, to any lands of the taluk which the Choudhuris had transferred to the defendants as nishkar. The Sahas purchased the taluk in 1300 and 1301 B.S. (1894) and these holdings of the defendants had become encumbrances on the taluk by adverse possession at the date of the plaintiffs' purchase of the taluk in October 1906. That the defendants were holding these lands adversely to the Sahas is obvious from the fact that the Sahas brought a suit to recover them as taluk lands from the defendants in 1900. The appellate Court allowed the withdrawal of that suit. The learned Judge has referred to the case reported in Goaool Bagdi v. Debendra Nath Sen [1911] 14 C.L.J. 136 and says:

that case and the line of cases following it have restricted, adverse possession (forming an encumbrance) to the possession of a trespasser in parts of the land of the defaulting tenancy.

21. He therefore holds that since the defendants in this case were not trespassers there could be no question of adverse possession,. The cases he refers to, do not appear to be an authority for any such restriction and in the present case it was immaterial to the Sahas whether the defendants obtained the taluk lands as trespassers or by purchase from the Choudhuris as nishkar lands. If the lands in fact belonged to the taluk, as against the purchasers of the taluk the defendants' possession was equally adverse in either case. I hold therefore that the defendants acquired a title by adverse possession to these lands if, as shown by the settlement records, they belonged originally to the taluk.

22. In this view it becomes necessary to ascertain whether, in respect of these lands, notices under Section 167, Bengal Tenancy Act, had been properly served. The learned Subordinate Judge has dis: cussed this question exhaustively, and is I think right in holding that the notices were not served as provided for the service of summons in such cases in the Civil Procedure Code. Under the rules framed by the Government of Bengal which have the force of law the service of notices under Section 167, Bengal Tenancy Act, must be as provided in the Civil Procedure Code. The notices were therefore not legally served. The learned Judge in appeal though he did not discuss the evidence of service agreed with the finding of the trial Court in this respect. It must be taken therefore that if any of the lands in suit are not included in the nishkar lands of Ex. F or in the agat lands of Ex- D, or if the socalled nishkar lands are really taluk lands, the defendants' holding of them would be encumbrances, and since these encumbrances have not been annulled, proper services of notices under Section 167, Bengal Tenancy Act, not having been made, the appellants claim must fail as regards all the lands in suit. The appeal is therefore allowed with costs, the decree of the first Court being restored.


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