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Anukal Chandra Chakravarti and ors. Vs. the Chairman of the Dacca District Board - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in113Ind.Cas.24
AppellantAnukal Chandra Chakravarti and ors.
RespondentThe Chairman of the Dacca District Board
Cases Referred and Turner v. Ringwood Highway Board
Excerpt:
limitation act (ix of 1908), section 22, schedule i, article 146a - suit for recovery of possession of land left on both sides of road--limitation--'road,' meaning of--pleadings--amendment--suit by chairman of 'district board'--amendment of name of plaintiff to 'district board' after limitation, effect of. - .....evidence of some witnesses for the defendants about the government' paying compensation for the lands acquired. he also relied upon the evidence of one madhu sana who admitted that the government had acquired the lands; and we cannot say that he was wrong in relying upon the evidence of that witness though he was a witness in the case from which there is no appeal taken before us but was tried along with the present suits. it is also to be noted, as has been observed by the lower appellate court, that the appellants in the present cases did not question the fact of the acquisition of the land by the government: bat their main objection was that the lands in suit were not, the acquired lands. with reference to this question the learned subordinate judge held that in the absence of.....
Judgment:

Suhrawardy, J.

1. The suits out of which these appeals have been brought were instituted by the District Board of Dacca to eject the defendants-appellants from the lands in suit on the ground that the lands belonged to the District Board as part of a public road from Danga to Kaliganj and that the defendants had trespassed into and encroached upon them. Both the Courts below decreed the plaintiff's suits. Out of the five suits instituted which were heard together, one was partially decreed and there is no appeal before us arising from it.

2. The first question that has been argued on behalf of the appellants is whether Article 146A of the Limitation Act applies to these cases. The defendants claimed title to these lands firstly, on the ground that they belonged to their taluks and tenancies. It has been found by both the Courts that the defendants have failed to prove this. In the alternative they claimed title to the lands on the ground of adverse possession against the plaintiff. With regard to three out of the four suits from which these appeals arise the finding of the learned Subordinate Judge in the lower Appellate Court is that no question of adverse possession arises, the huts having been built or other acts of possession exercised over those lands within 12 years of the institution of the suits. In Suit No. 1074, it was tried to prove that formerly there were houses of prostitutes by the side of the road including the disputed lands. One of the defence witnesses said (hat the tatties were put up about 30 years ago. He was examined two years after the institution of the suit. The learned Subordinate Judge accordingly observes that even if this evidence be true, the defendants' adverse possession would extend only to 28 years. He has accordingly applied Article 146A and held that as the defendants have failed to prove possession for 30 years the plaintiff's right in the land has not been extinguished. The learned Subordinate Judge does not accept the witness's statement to be true but for the purpose of the application of the law he assumes it to be so. If the appellants succeed an showing that Article 146A does not apply, it should necessitate a remand for the determination of the question of limitation in Suit No. 1074. The plaintiff's case is that the lands in suit together with the lands forming the actual pathway were acquired for the purpose of building a road. That road was built but the side lands which are the lands in suit were kept fallow for the purpose of mending the road by taking earth from them to make necessary repairs It is accordingly argued on behalf of 'the appellants that the lands in suit cannot be said to be 'public street or road or any part thereof' within the meaning of Article 146A. On the other hand it is argued on behalf of the respondent that 'road' is not limited to the portion actually used by passers-by, but includes such land as might be necessary to make a public thoroughfare and so is a part of the street in actual use. The word 'road' has not been defined in any of the Acts. The definition of 'street' in the Calcutta Municipal Act of 1923 is extremely meagre and does not help us one way or the other. The term, however, has been defined in Section 4 of the Bengal Village Self-Government Act of 1919 where it is said to mean 'any road, street or passage whether a thoroughfare or not, over which the public have a right of way' The evidence in the case which has been accepted by both the Courts below is that the lands in suit together with the laud over which the main thoroughfare runs were acquired by the Government sometime ago and made over to the District Board for making the road. The District Board made the road leaving portions of the land on both sides of the road for the purpose of repairing it. It can therefore, be said that the lands in suit were lands used for the purposes of the road; and it may further be assumed that if necessity arises in future these lands may be utilised for the purpose of widening the road. The expression 'road' or 'highway has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also to the side lands. See the cases of R. v. Wright (1832) 3 B. & Ad. 681 : 1 L.J.M.C. 74 : 110 E.R. 218 : 37 R.R. 520 and Turner v. Ringwood Highway Board (1870) : 9 Eq. 418 : 21 L.T. 745 : 18 V. I am not prepared to put a too narrow meaning on the expression 'public street' or 'road' in Article 146A, as it is intended to safeguard the interest of public bodies which are not expected to be as vigilant over their rights as private individuals. I am of opinion that 'road' in that Article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road. I accordingly hold that Article 146A applies and on the finding of the learned Judge Suit No. 1074 is not barred by limitation.

3. In connection with this matter an objection is taken with regard to the amendment of the plaint. It appears that the plaint was filed on the 15th September, 1921. At the time of the hearing of the argument by the first Court objection was taken that the plaintiff was wrongly described, the plaintiff in the plaint having been described as Chairman of the District Board of Dacca, whereas under Section 20 of the Bengal Local Self-Government Act (III of 1885) the District Board is a corporate body and is entitled to sue in its own name. The Munsif disallowed the objection at that late stage but the Subordinate Judge on the objection of the appellants allowed the amendment of the plaint in the Appellate Court. It is argued that limitation should be counted from the date of the amendment and not from the date of the institution of the suit. I do not think that this objection ought to prevail. The amendment was made under O.1, Rule 10 subject to the Law of Limitation as contained in Section 22 of the Limitation Act. Section 22 has been held to apply to cases where a new plaintiff has been introduced and is not applicable in cases where there is only an amendment with regard to the description of the plaintiff. In the present case the real plaintiff has all along been the District Board. The amendment, therefore, does not introduce a new plaintiff. This objection is raised in Suit No. 1074 where, it may be said that at the time of the amendment according to the evidence of the defence witness referred to above, the defendants were in possession for 30 years. It is also argued that some schedules were also amended by changing the boundaries. What happened was that after the institution of the suit, a Commissioner was appointed by Court to hold a local inspection and prepare a map. In the plaint lands were not properly described and after the submission of the report by the Commissioner the plaintiff applied for certain alteration in the description of the lands. This, in my opinion, does not mean an inclusion of land which was not the subject-matter of the suits instituted. These and a few other objections were also taken which were not raised in the lower Appellate Court and we are not, therefore, inclined to hear them; but as they have been pressed on our attention we have given our opinion with regard to some of them.

4. The last and the most important question is with regard to the title of the plaintiff. It is argued that there was no sufficient evidence of plaintiff's title as has been admitted by the Court below and, therefore, the plaintiff's suit must be dismissed. The facts proved and the findings come to are these: On the 10th February, 1879, a declaration was made by the Government (Ex. 19) proposing the acquisition of lands including the lands in suit under the law. A chitta was prepared, dated the 22nd January, 1880, and a map was also prepared on the 5th April, 1880. It is the plaintiff's case that the Government acquired the land about which the declaration was made and made it over to the District Board for the purpose of making the road. The plaintiff has failed to prove the actual acquisition and possession by the Government. It has also failed to prove the actual delivery of the land by the Government to it. The facts proved are that the Government expressed its intention to acquire the land, that some necessary steps were taken in pursuance of that resolution and that years after that land was found in the possession of a pub-lie body (the plaintiff). In these circumstances a Court of fact cannot be said to be wrong in presuming that all the necessary steps for the acquisition of the land and for the transfer of the same to the public body were taken. The learned Subordinate Judge has relied upon these facts as well as upon the evidence of some witnesses for the defendants about the Government' paying compensation for the lands acquired. He also relied upon the evidence of one Madhu Sana who admitted that the Government had acquired the lands; and we cannot say that he was wrong in relying upon the evidence of that witness though he was a witness in the case from which there is no appeal taken before us but was tried along with the present suits. It is also to be noted, as has been observed by the lower Appellate Court, that the appellants in the present cases did not question the fact of the acquisition of the land by the Government: bat their main objection was that the lands in suit were not, the acquired lands. With reference to this question the learned Subordinate Judge held that in the absence of anything to the contrary the lands in suit were the acquired lands. The position was that the defendants claimed the lands to be parts of their taluks and tenancies and failed to prove it. The plaintiff claimed the lands as acquired by the Government tinder the declaration of 1879. The Court Commissioner re-laid the map prepared in 1880 and found that the lands in suit were included within the land to which the declaration related. On these facts the Court below has held that the plaintiff has succeeded in proving title to the lands in suit, and we cannot say that his conclusion is wrong.

5. The result is that all the grounds taken by the appellants fail and the appeals are dismissed with costs.

Graham, J.

6. I agree.


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