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Raja Manindra NaraIn Roy Shebait of Idol Krishna Ray Jiu Vs. Executors to the Estate of Late Bhuban Chandra Bandopadhyay and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal913,95Ind.Cas.644
AppellantRaja Manindra NaraIn Roy Shebait of Idol Krishna Ray Jiu
RespondentExecutors to the Estate of Late Bhuban Chandra Bandopadhyay and ors.
Cases ReferredVidya Varuthi Thirtha v. Balusami Ayyar
Excerpt:
limitation act (ix of 1908), schedule i, articles 134, 144 - possession against shebait--adverse possession against his successors--precedents, authority of. - .....has been so continued and consequently the possession of the lessee never becomes adverse till his death. possession of the lessee cannot be adverse so long as the tenancy continues and it is only if the tenancy comes to an end that the possession of the lessee becomes adverse. what room is there for the application of this principle in the case of a sale? the character of the purchaser's possession remains the same, whatever the succeeding shebait may choose to do or not to do. there is thus a radical difference between a sale and even a permanent lease in this respect.8. i propose now to refer some of the later decisions of the judicial committee in this connection. in the case of subbaiya pandaram v. mahamed mustapha maracayar 74 ind. cas 492 : 50 i. a. 295 : 40 c. l. j. 20 : 21 a. l......
Judgment:

Mukerji, J.

1. The plaintiff who is the appellant in this appeal sued as shebait of a certain deity for a declaration that the deity has got lakheraj title to the lands in suit. The suit was decreed by the Court of first instance but has been dismissed on appeal.

2. The plaintiff's case was that the lands were dedicated to the deity by his ancestor Raja Rudranarain Roy but the defend ante have got themselves recorded in tie Settlement papers as the owners of the lands, and the said entry has thrown & cloud over the deity's title to the land?

3. The case of the defendants, was that the lands ware the niskar property of Raja Rudranarain Roy that the said Raja had never dedicated the lands to the deity, but had mortgaged them to one Joynarain Maiti, and that their predecessors had purchased them at au auction sale in execution of the decree on the said mortgage and since then they or their predecessors have been in possession thereof.

4. The learned District Judge held in his judgment that the title of the deity had been established bat that it had been extinguished by adverse possession on the part of the defendants and their predecessors. In this view of the matter the learned District Judge dismissed the suit. He further observed in his judgment that as the plaintiff was out of possession he should have filed a suit for recovery of possession, and as he did not do so but merely asked for a declaration of the title of the deity to the lands, a declaratory decree ought not to be given to him.

5. The first contention of the appellant is that in arriving at his finding on the question of possession the learned Judge has omitted to take into consideration some of the materials which were relied upon in the judgment of the Court of first instance and has proceeded upon a misconception of some of the facts. Many of the matters to which our attention was drawn in this respect are pieces of evidence or circumstances which it is difficult to say were overlooked or ignored by the learned Judge. And the matters which need be considered so far as this ground is concerned are three in number. It is said in the first place that there is on the record the evidence of D. W. No. 2 who states that the defendants had not been in possession of the lands for some time before the suit and if this evidence was taken into account the presumption afforded by the Record of Rights would be destroyed. The learned Judge has remarked in his judgment that the oral evidence cannot be taken to mean that the tenants are actually paying rent to the plaintiff. As the lands are rent paying lands in the occupation of tenants, the passage in the deposition of the witness, can only mean that the defendants have not realized the rents for sometime, but that does not mean that the defendants were out of possession or that the plaintiff, was receiving rent from the tenants. The learned Judge has referred to the fact that the tenants are siding with the plaintiff and that taking advantage of the dispute they are not paying rent to either of the parties. Nextly it is said that the learned Judge was in error in supposing that there was no objection on behalf of the plaintiff when the names of the defendants' predecessors were recorded in respect of the lands under the Land Registration Act after their purchase. What the learned Judge has observed in his judgment in this connection seems to us to be quite correct. He has remarked that there was a question as to whether these lands or some other lands were purchased, but as only one property admittedly was purchased, namely, the property in suit, the registration of name must have been in reference to that property. He seems to us to have been right in observing that there was no objection as to the registration, for the only objection that was raised was as to the identity of the property, in respect of which the names were to be registered. Lastly it is said that the learned Judge was wrong in supposing that Ex. 15 the statement in connection with the thuk-bast survey shows that the defendants' predecessors were in possession of Chak No. 5 onlyand not of Qhak No. 1 in which the lands in suit are situate. This argument is based on a misapprehension as we find that it is clear from the statement itself that Chak No. 5 was carved out of Chak No. 1 which was a much larger area, and it contains 37 acres 3 roods of lands, which is approximately the area of the land insuit. We think that the learned Judge was right in the view that he has taken of those materials to which reference has been made here and that no objection can be taken to the learned Judge's finding that the presumption in favour of the defendants which arises upon the Record of Rights has not been rebutted but, on the other hand, has been supported by other evidence.

6. The next ground urged is a question of law. It is said that the possession of the defendants has not run for a sufficient length, of time to extinguish, the plaintiff's title. To appreciate this contention a few dates need be noted. Raja Rudranarain the author of this endowment whip created the debutter and constituted himself the first shebait died some 16 or 17 years before this suit. After him his son Raja Bejoynarain became and acted as shebait till his death in 1914, when the plaintiff became the shebait. The defendants' predecessor purchased the lands when Raja Rudra narain was alive. It is contended on behalf of the appellant that upon the authority of the decision of the Judicial Committee in the case of Vidya Varuthi Thirtha Swamigal v. Balusamy Iyyar 65 Ind. Cas. 181; 48 I. A. 302 : 44 M. 831 : (1921) M. W. N. 449 : 41 M. L. J. 346 : 3 U. P. L. R. (P C.) 62 : 15 L. W. 78 : 30 M. L. T. 66 : 3 P. L. T. 245 : 26 C. W. N. 537 : 24 Bom. L. R. 629 : 20 A. L. J. 497 : A. I. R. 1922 P. C. 123 (PC) possession of the defendants can only be adverse from the death of the plaintiffs' predecessor, that is to say from 1914. It is said that there can be no distinction between a sale and a permanent lease, and the logical effect Vidya Varuthi's case 65 Ind. Cas. 181; 48 I. A. 302; 44 M. 831; (1921) M. W. N. 449; 41 M. L. J. 346; 3 U. P. L. R. (P C.) 62; 15 L. W. 78; 30 M. L. T. 66; 3 P. L. T. 245; 26 C. W. N. 537; 24 Bom. L. R. 629; 20 A. L. J. 497; A. I. R. 1922 P. C. 123 (PC) would be to hold that each succeeding shebait when he assumes office can repudiate his predecessor's action or ratify it, and that, therefore, any possession acquired adversely to the preceding shebait cannot enure to the benefit of the possessor when the next incumbent comes in; but that the advent of a new shebait gives a fresh start to such possession. It is argued that the earlier decisions of the Judicial Committee are no longer to be treated as good law and that the later decisions of the Board after Vidya Varuthi's case 65 Ind. Cas. 181; 48 I. A. 302; 44 M. 831; (1921) M. W. N. 449; 41 M. L. J. 346; 3 U. P. L. R. (P C.) 62; 15 L. W. 78; 30 M. L. T. 66; 3 P. L. T. 245; 26 C. W. N. 537; 24 Bom. L. R. 629; 20 A. L. J. 497; A. I. R. 1922 P. C. 123 (PC) tend to establish this position. I am clearly of opinion that this contention is not well-founded.

7. At the outset it should be observed that a case is only an authority for the proposition it decides and not for any proposition that may seem to follow logically from it. Quinn v. Leathern (1901) A. C. 495 : 70 L. J. P. C. 76 : 65 J. P 708 : 50 W. R. 139 : 85 L. T. 289 : 17 T. L. R. 749. Vidya Varuthi's case 65 Ind. Cas. 181; 48 I. A. 302; 44 M. 831; (1921) M. W. N. 449; 41 M. L. J. 346; 3 U. P. L. R. (P C.) 62; 15 L. W. 78; 30 M. L. T. 66; 3 P. L. T. 245; 26 C. W. N. 537; 24 Bom. L. R. 629; 20 A. L. J. 497; A. I. R. 1922 P. C. 123 (PC) was that of a permanent lease granted by the head of a math. In that case it was held that the lessee has no adverse possession under Article 144 of the Schedule to the Limitation Act until the death of the head who granted the lease, and that if the lessee's possession is consented to by the succeeding head that consent is referable to a new tenancy created by him, and there is no adverse possession until his death. The reason given by their Lordships as to why the possession cannot be adverse until the death of the second head is that it is within his power to continue the tenancy during his life and if there is receipt of rent by him the proper inference is that the tenancy has been so continued and consequently the possession of the lessee never becomes adverse till his death. Possession of the lessee cannot be adverse so long as the tenancy continues and it is only if the tenancy comes to an end that the possession of the lessee becomes adverse. What room is there for the application of this principle in the case of a sale? The character of the purchaser's possession remains the same, whatever the succeeding shebait may choose to do or not to do. There is thus a radical difference between a sale and even a permanent lease in this respect.

8. I propose now to refer some of the later decisions of the Judicial Committee in this connection. In the case of Subbaiya Pandaram v. Mahamed Mustapha Maracayar 74 Ind. Cas 492 : 50 I. A. 295 : 40 C. L. J. 20 : 21 A. L. J. 730 : (1924) M. W. N. 65 : A. I. E. 1923 P. C. 175 : 45 M. L. J. 588 : 25 Bom. L. R. 1275 : 46 M. 751 : 18 L. W. 903 : 28 C. W. N. 493 : 2 Pat. L. R. 104 : 33 M. L. T. 285 (P. C.). there was an endowment created in 1890 in respect of some immoveable property for some charitable objects, and in 1898 a part of the property was sold in execution of a decree against the son of the author of the endowment, who was the then trustee, for debts incurred by him. The purchaser and some other persons who claimed under him were in possession since that date. In 1913 the grandson of the author of the endowment having been appointed trustee by the District Judge sued the purchaser and the persons who claimed under him for possession of the purchased property. The case no doubt was one by a trustee and not she-bait of a Deity, but when dealing with the contention that limitation runs afresh as each new trustee succeeds to the office the Judicial Committee made the following observations which indicate the true scope of the rule laid down in Vidya Varuthi's case 65 Ind. Cas. 181; 48 I. A. 302; 44 M. 831; (1921) M. W. N. 449; 41 M. L. J. 346; 3 U. P. L. R. (P C.) 62; 15 L. W. 78; 30 M. L. T. 66; 3 P. L. T. 245; 26 C. W. N. 537; 24 Bom. L. R. 629; 20 A. L. J. 497; A. I. R. 1922 P. C. 123 (PC) 'A further argument has been put forward to the effect that the period of limitation begins to run afresh as each new trustee succeeds to the office, and in support of that view reliance is placed on Iswar Shyam Chand Jiu v. Ram Kanai Ghosh 10 Ind. Cas. 683 : 38 I. A. 76 : 38 C. 526 : 14 C. L. J. 238 : 15 C. W. N. 417 : 9 M. L. T. 448 : 8 A. L. J. 528 : 13 Bom. L. R. 421 : (1911) 2 M. W. N. 281 : 21 M, L. J. 1145 (P. C.). and Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar 65 Ind. Cas. 181 : 48 I. A. 302 : 44 M. 831 : (1921) M. W. N. 449 : 41 M. L. J. 346 : 3 U. P. L. R. (P C.) 62 : 15 L. W. 78 : 30 M. L. T. 66 : 3 P. L. T. 245 : 26 C. W. N. 537 : 24 Bom. L. R. 629 : 20 A. L. J. 497 : A. I. R. 1922 P. C. 123 (PC) 'but those authorities do not assist the appellant. In each case they relate to the effect of an attempt on the part of a trustee to dispose of the property by a permanent mukurrari lease. This he has no power to do, though he is at liberty to dispose of it during the period of his life and a grant made for a longer period is good, but good only to the extent of his own life-interest. It follows, therefore, that possession during his life is not adverse, and that upon his death the succeeding trustee would be at liberty to institute proceedings to recover the estate, and the Statute would only run against him as from the time when, he assumed the office. Such an argument has no relation to the case where as here, property has been acquired under an execution sale and possession retained under it. Their Lordships are, therefore, of opinion that this suit is barred, either under Article 134 or Article 144 of Schedule I to the Indian Limitation Act.' Their Lordships further pointed out in that case that there is little difference in principle between a transfer under an adverse execution and a sale by a trustee and as it was not a transfer by the trustee himself for a valuable consideration Article 134 should be disregarded and Article 144 governed the case. In the case of Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 47 M. 337 : A. I. R. 1924 P. C. 65 : 19 L. W. 259 : 22 A. L. J. 130 : 34 M. L. T. 10 : (1924) M. W. N. 293 : 46 M. L. J. 546 : 10 O. & A. L. R. 464 : 28 C. W. N. 809 : 51 I. A. 83 : L. R. 5 A. (P. C.) 33 (P. C.) which was the case of a permanent lease granted by a, shebait their Lordships of the Judicial Committee enunciated the proposition on reference to Vidya Varuthi's case 65 Ind. Cas. 181; 48 I. A. 302; 44 M. 831; (1921) M. W. N. 449; 41 M. L. J. 346; 3 U. P. L. R. (P C.) 62; 15 L. W. 78; 30 M. L. T. 66; 3 P. L. T. 245; 26 C. W. N. 537; 24 Bom. L. R. 629; 20 A. L. J. 497; A. I. R. 1922 P. C. 123 and other cases on the point in these words: ' In the case of a shebait, a grant by him, in violation of his duty, of an interest in endowed lands, which he has not authority as shebait to make, may possibly under some circumstances be good as against himself by way of estoppel, but is not binding upon his successors' In a more recent decision of the Judicial Committee in Lai Chand Marwari v. Ramrup Gir Since reported in 93 Ind. Cas. 280 : 43 C. L. J. 249 : 24 A. L. J. 105 : A. I. R. 1926 P. C. 9 : (1926) M. W. N. 203 : 7 P. L. T. 163 : 50 M. L. J. 189 : 3 O. W. N, 335 : 5 Pat. 312 (P. C).[Ed.] which has not yet been reported the question of adverse possession in a case of this nature has been considered. In that case the properties of the muth were alienated by a Mahant who came into office in 1880 or shortly therefter; some were given in mortgage, others were sold outright. These alienations took place between the years 1880 and 1888, by which latter date the Mahant had denuded himself and the muth of all its endowments. So it came about that the properties in suit were in the exclusive possession of the defendants or their predecessors-in-title as for absolute interests for periods exceeding on the date of the suits, in every instance, a term of 28 years of continuous duration. In 1892 the Mahant made over the asthal to the plaintiff and left the place for good and died thereafter, the date of his death being one of the questions in dispute. The suits were commenced to recover the properties and one of the questions which arose in the, suits was that of limitation. Their Lordships observed in their judgment that the plaintiff would fail in the absence of evidence of the death of the Mahant having taken place, within twelve years before the institution of the suits. Their Lordships were of opinion that the Mahant had died in 1892 and so the suits were barred; and then proceeded to observe as follows:---'This disposes of the case, and it is unnecessary for their Lordships to deal with the important and difficult question whether here the Statute did not commence to run in favour of the defendants from the dates of the wrongful alienations of the properties or at all events from the date of his final abandonment of his office of Bhawan Gir and not only from his death. Whether in other words, the case is governed by the decisions of whichDamodar Das v. Lakhan Das 7 Ind. Cas. 240 : 37 I. A. 147 : 37 C. 885 : 12 C. L. J. 110 : 14 C. W. N. 889 : (1910) M. W. N. 303 : 7 A. L. J 791 : 8 M. L. T. 145 : 20 M. L. J, 624 : 12 Bom. L. R. 632 (P. C.). may be taken as the leading authority; or by the line of authority of which Vidya Varuthi Thirtha v. Balusami Ayyar 65 Ind. Cas. 181 : 48 I. A. 302 : 44 M. 831 : (1921) M. W. N. 449 : 41 M. L. J. 346 : 3 U. P. L. R. (P C.) 62 : 15 L. W. 78 : 30 M. L. T. 66 : 3 P. L. T. 245 : 26 C. W. N. 537 : 24 Bom. L. R. 629 : 20 A. L. J. 497 : A. I. R. 1922 P. C. 123 (PC) may be taken as typical. Thier Lordships while hot pronouncing upon it have given very careful consideration to this interesting and difficult question. Upon it they say no more than this, that they must not be taken to accept the view with reference to it propounded by the High Court. So far as they are concerned the question remains entirely open to be determined when it arises.' These observations clearly indicate that whatever may be said on the question whether adverse possession should run from the date of the alienations or the date of the final abandonment of office by the Mahant who made the alienation, there can be no question that in any event it would run from the date of that Mahant's death. In the present case more than twelve years have admittedly expired since the death of Raja Rudranarain, and the learned Judge was right in holding that the adverse possession of the defendants had ran for a sufficient length of time to. extinguish the plaintiff's title.

9. The third contention of the appellant relates to the question of the maintainability of the suit audit is based upon a misconception as to the prayers in the plaint, it being urged that there was a consequential relief asked for in the shape of a prayer for correction of the entry in the. Record of Rights. It appears, however, that the prayer, though contained in the plaint, was afterwards withdrawn and so, in our opinion, the learned District Judge was right in the view he has expressed with regard to this matter.

10. The appeal accordingly fails and must be dismissed, with costs.

Suhpawardy, J.

11. I agree.


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