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Ramanuj Rai and anr. Vs. Dakshineshwar Rai and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal752
AppellantRamanuj Rai and anr.
RespondentDakshineshwar Rai and ors.
Cases ReferredRam Narain Sahoo v. Bandi Prasad
Excerpt:
- .....requisite oral evidence it would prove the said contents. objection to the reception of the paper-book in evidence was taken on behalf of the plaintiffs, but that objection was not dealt with at the time. the paper-book was marked as an exhibit with the endorsement that it was objected to. the order sheet contains a simple order that it was marked as an exhibit, while the list of exhibits shows that it was admitted subject to objection. it will be observed that the column provided for the remarks in the said list is headed 'whether admitted after or without objection.' this is, as it should be, for all objections as to the admissibility of evidence should be dealt with at the time of its reception or at any rate at the earliest possible opportunity,--a rule which has been repeatedly.....
Judgment:

Suhrawardy, J.

1. In this case the defendants are appellants. Both the Courts below decreed the plaintiffs' suit which was one for establishment of their title to and recovery of possession of 15 cottahs of the land in suit. The property originally belonged to one Rakhal. The plaintiffs' case is that on the 25th February 1901 the plaintiffs' father purchased it along with other plots from Rakhal. The kobala recites that the property was sold in order to pay off a mortgage executed by Rakhal in favour of the plaintiffs' father in 1889. It further appears that in 1888 Rakhal had mortgaged this plot to one Khelaram by way of usufructuary mortgage and put him in possession of it under which the mortgagee was to remain in possession up to 1314. The plaintiffs' father, after having purchased the land, paid off Khelaram and entered into possession of it in 1901. The plaintiffs allege that they were in possession all along from that date till December 1917 when they were dispossessed by the defendants. There were proceedings started under Section 145, Criminal P.C., which terminated in favour of the defendants and hence this suit.

2. The defendants' case is that the property in suit belonged to Rakhal who in 1284 mortgaged it to one, e.g., Rooke who obtained a decree on the mortgage and purchased the property in 1891. In 1892 Rooke sold it to Dinesh from whom Ramesh, who held a mokurari interest in the property bought by Rooke, purchased it in 1900. Ramesh mortgaged the property to one Bhowni Ranjan Sen who obtained a decree on the mortgage and in execution of the decree the property was purchased by one Harmukh Marwari from whom the defendants purchased it on the 28th Kartick 1313 and since then they are in possession of it. The defendants did not produce their documents of title but stated that they were filed in a certain case in the High Court. No attempt was made to call for the documents from the High Court but the paper-book prepared in the High Court in which translations of those documents were inserted was put in on behalf of the defendants. The plaintiffs objected but the trial Court marked the paper-book as an exhibit in the case with the remark after objection.' At the hearing the trial Court did not take into consideration the documents in the paper-book as the original documents were not placed before it. On appeal the Subordinate Judge held that the paper-book was not admissible in evidence, but he looked into the paper-book and on a consideration of certain facts he found against the defendants.

3. The first point that is argued before us is that when the Court below was of opinion that the paper-book should not have been admitted in evidence, the defendants should have been given an opportunity of producing the original documents. They allege that the trial Court having admitted the paper-book they did not consider it necessary to produce the original documents and the appellate Court being of opinion that the original documents should have been produced and that the paper-book was no evidence, opportunity should have been given to them to produce the original documents. This question raises a question of some intricacy inasmuch as the paper-book is, in my opinion, no evidence at all, either primary or secondary. It may be, however, conceded that in the interest of justice, one Court having committed a mistake in admitting the document, another Court when it was of opinion that such a document should not have been admitted should have given an opportunity to the appellants to produce the original documents. It is not necessary to enter into this matter further as in my opinion the appeal fails on the ground of limitation.

4. It is found that the plaintiffs came into possession of this land in 1901. They were dispossessed in 1917. On these facts the Munsif found that the plaintiffs succeeded, irrespective of the title which they have proved, in proving adverse possession against the defendants and their predecessors. The learned Subordinate Judge is also of opinion that the evidence of possession adduced on behalf of the plaintiffs is preferable to that produced on behalf of the defendants and he has found that the land was in possession of the plaintiffs from 1901 till their dispossession in 1917. In view of these findings he dismissed the appeal. In this connexion, it is argued before us, that the plaintiffs' possession in 1901 need not be adverse against Rakhal and, therefore, against the defendants who derived their title from Rakhal. It is said that in 1901, the property was in possession of Khelaram by virtue of the usufructuary mortgage executed in his favour by Rakhal. Rakhal and his successors in title, the defendants or their predecessor, were, therefore, not entitled to take possession of the property until the termination of the usufructuary mortgage in favour of Khelaram until the end of 1314 or April 1908. I am unable to accept this contention. The plaintiffs' father redeemed the mortgage in favour of Khelaram and took actual possession of this property by virtue of his purchase. According to the defendants' case in 1901 when Rakhal sold this property to the plaintiffs' father he had no interest left in it. The plaintiffs' father was then for all intents and purposes a trespasser so far as the defendants were concerned. He came into possession of the property as a trespasser and by paying off Khelaram he obtained actual possession of it. Khelaram's mortgage having come to an end in 1901, he being paid off, Rakhal or the defendants who allege to have derived their title from him, cannot say that they had no right at all to take direct possession of the property in 1901. The only bar to their taking khas possession of the property was the usufructuary mortgage executed in favour of Khelaram. When that mortgage was extinguished or the operation of it terminated, by any means whatsoever, the defendants cannot say that Khelaram was still entitled to possession and their title to khas possession was delayed till the entire period of usufructuary mortgage. In this view of the matter, the finding of the Courts below being that the plaintiffs were in possession from 1901 to 1917, it must be held that they acquired a good title by adverse possession against the defendants. I am accordingly of opinion that this appeal fails on the second ground mentioned above and should be dismissed with costs.

Mukerji, J.

5. I agree that the appeal should be dismissed with costs and desire to add a few words. But for the opinion which I have formed on the question of possession I should have felt bound to remand the case to enable the defendants-appellants a further opportunity of adducing documentary evidence. They put in a High Court paper-book in a certain first appeal as secondary evidence of the contents of some documents. The paper-book by itself would not be secondary evidence of the contents of those documents, but if a proper case were made out for the reception of such evidence then in conjunction with the requisite oral evidence it would prove the said contents. Objection to the reception of the paper-book in evidence was taken on behalf of the plaintiffs, but that objection was not dealt with at the time. The paper-book was marked as an exhibit with the endorsement that it was objected to. The order sheet contains a simple order that it was marked as an exhibit, while the list of exhibits shows that it was admitted subject to objection. It will be observed that the column provided for the remarks in the said list is headed 'Whether admitted after or without objection.' This is, as it should be, for all objections as to the admissibility of evidence should be dealt with at the time of its reception or at any rate at the earliest possible opportunity,--a rule which has been repeatedly enjoined in reported decisions. The reason of the rule is that if the Court allows the objection, the party tendering the evidence may take such steps as he may be advised to get the lacunae remedied. The expression 'subject to objection' means that the objection remains undecided. It may be that in some cases, evidence has to be received subject to objection in anticipation of otter evidence which, it is hoped, will be forthcoming and which if produced will remove the objection. In such cases a final decision on the objection must be recorded before the Court proceeds to judgment. Omission in this respect is likely to prejudice the party producing the evidence by letting the matter remain in a dubious state and then depriving the party tendering the evidence of an opportunity of making up the defects which in many cases he would be ready to do if he is told that the objection is allowed. In the present case it is only in the judgment of the trial Court that there is any indication that the Court is not satisfied as to the admissibility of the evidence. This is a procedure which deserves to be condemned.

6. On the question of possession, however, I am decidedly against the appellants' contention. The mortgages in order of sequence were as follows: (1) simple mortgage in favour of Rooke; (2) usufructuary mortgage in favour of Khelaram, and (3) simple mortgage in favour of the plaintiff's father. At the date of the suit on Rooke's mortgage the other two mortgages were in existence, but the said mortgagees were not made parties to the suit and the right of the puisne mortgagees who were not parties to the suit remained unaffected by the decree and the proceedings in execution thereof.

7. The appellants' chief contention is that so long as the usufructuary mortgage in favour of Khelaram subsisted, adverse possession could not run as against Rooke or his transferees--the appellants being such transferees--and as an authority for this proposition reliance is placed upon certain decisions, notably that of this Court in the case of Ram Narain Sahoo v. Bandi Prasad [1904] 31 Cal. 737, in which it is observed that a first mortgagee in possession under a prior sale may always shield himself under his mortgage and his purchase, although his right to possession may be defective and that the puisne mortgagee's right is limited to a right of redemption or sale of the mortgaged premises subject to the lien of the first mortgagee or auction-purchaser on a decree obtained by the latter. If Rooke could obtain possession under his purchase the rights of the parties would have been regulated by this rule. The findings of the Courts below indicate, and indeed it is stated to be one of the admitted features of the case, that the property was at the time of Rooke's purchase and thereafter in the possession of Khelaram, the usufructuary mortgagee. The plaintiffs' father treated this decree as a nullity, ignored the rights of Rooke, purchased the property in satisfaction of his own mortgage, and also paid off Khelaram and came into possession. He acquired no title under his purchase and came in as an outsider and possibly a trespasser; and the fact that he chose to pay off Khelaram makes no difference. From the point of time that he came to be in possession, he was in adverse possession. This was in 1308, and from that time till 1324, when the plaintiff was dispossessed, the plaintiffs' father and then the plaintiffs were in possession adversely to the defendants, What rights Rooke had after his purchase as against Khelaram and the plaintiffs' father as puisne mortgagees is a question which has hardly any bearing on the question of possession.


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