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Atma Ram Vs. Paras Ram and ors. - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 367 of 1967
Reported inAIR1971HP11
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 2
AppellantAtma Ram
RespondentParas Ram and ors.
Appellant Advocate B. Sita Ram, Adv.
Respondent Advocate H.S. Thakur, Adv.
DispositionAppeal dismissed
Cases ReferredIn Maidin Saiba v. Nagapa
- .....atma in favour of bhagta with the land shown in the plaint.7. it is true that the three plots of land in possession of paras ram had been entered after 1954 as a part of the land subsequently shown to have been mortgaged to daulat ram. defendant no. 2 only. but, as paras ram was evidently in possession since long before 1954, this entry was obviously procured by the plaintiff in order to create a semblance of right which he had lost by the adversepossession of paras earn. it is, therefore, not necessary at all even to refer to the authorities cited by learned coxinsel for the appellant to substantiate the submission that a suit by a mortgagor creating an usufructuary mortgage would not be barred against a third person who had dispossessed a mortgagee. there is a conflict of authorities.....

M.H. Beg, C.J.

1. The plaintiff-appellant had brought a suit for redemption of land, measuring 31 Bighas and 16 Bis-was, consisting of ten plots with Khasra Nos. 109/3, 128, 131/1 289/130, 292/132, . 133, 138, 143, 157 and 159 and two houses standing in Khasra No. 137 in village Sandoo, Tehsil Theog in the district of Mahasu. The Khewat and Khatauni numbers were stated in the plaint to be: 29/43-44. The allegation in the plaint was that this property was first mortgaged on 3-12-1942 to Bhagta alias Bhagat Ram, defendant No. 1, in lieu of Rs. 700/-and that Bhagta. was given actual possession of all the plots in dispute as the mortgage was usufructuary. But, later on, on 14-6-1954, an additional sum of Rs. 800/- was said to have been taken from Bhagta and his son Daulat Ram, defendant No. 2, and the usufructuary mortgage was alleged to have been converted into one to both the father and the son who, it was said, had realized farmore than the amount due on the mortgage so that the property was liable to be redeemed after rendition of accounts as provided in Section 8 of the Himachal Pradesh Debt Reduction Act, 1953. It was also alleged by the plaintiff that the two mortgagees had given 8 Bighas and 1 Biswa land in Khewat Khatauni Nos. 29/43 Khasra Nos. 109/3, 128 and 131/1 to Paras Ram, defendant No. 3, who was their tcnant-at-will, as entered in the Jamabandi for the year 1958-59 so that defendant No. 3 was also a necessary party to the redemption suit and liable to be evicted by the same suit.

2. Bhagat Ram. defendant No. 1, denied any subsisting mortgage and pleaded that he was in possession of Khasra Nos. 292/130, 292/132, 133, 138, 143, 157 and 159 as a tenant. As regards the mortgage in 1954, in which Khasra Nos. 109/3, 128 and 287/137/1 in Chak Sandoo were also said to be included, Bhagat Ram only admitted that the mortgage was in favour of his son, Daulat Ram. defendant No. 2, and denied that he was himself the mortgagee. He alleged with regard to the three numbers claimed by defendant No. 3 that these were either tenancy plots of Paras Ram, defendant No. 3, or, in the alternative, plots to which Paras Ram had acquired rights by open and hostile possession. Daulat Ram, defendant No. 2, only admitted that the plaintiff had borrowed Rs. 1,500/- from him, but he denied that he ever came into possession of any land. He claimed to be entitled to repayment of his money with Interest to him. Paras Ram, defendant No. 3, did not admit the alleged mortgages or that the plots in his possession were ever part of the land included in any mortgage. He claimed to be the owner of the three plots by reason of an open and hostile possession as against every one since the time of his forefathers, but, in the alternative, he asserted that he was the tenant of the three plots to which his claim was confined. He pleaded that the plaintiff's suit was beyond time as against him. In his replications, the plaintiff denied that Paras Ram was ever the tenant of the plaintiff.

3. The trial Court had found that the whole of the land in dispute was actually mortgaged for Rs. 700/- on 3-12-1942 even though the mortgage deed was not registered. The plaintiff had only tenancy rights so that he could not execute a legally valid mortgage. The trial Court thought the entries in favour of Bhagta as a non-occupancy tenant, with the observation 'Bila lagan bawaja tasuwar rahen beqabza', proved a transaction which was equivalent to a mortgage. Unfortunately, the trial Court did not try to correlate the Khatauni Khasra numbers shown in the mortgage deed dated 3-12-1942 (Ex. P-1), the admissibility of which in evidence is not questioned by the defendants, shows that the property mortgaged was a half share of the property consisting of 12 plots of land in Khewat No. 1, Khatauni No. 9 with a total area of 143 Bighas. It is difficult to understand how the trial Court came to the conclusion that all the plots for which the suit was filed were included in the property mortgaged of which the possession was said to have been given to Bhagta. The trial Court also appears to have accepted, in much too facile a fashion, that the whole property was mortgaged again to both the defendants 1 and 2 in 1954, although there was no fresh deed but only certain entries in revenue records purporting to evidence the subsequent mortgage. The trial Court decreed the suit against all the three defendants.

4. The first two defendants submitted to the decree of the trial Court. But, Paras Ram, who claimed separate rights to 8 Bighas and 1 Biswa of land comprised in the three plots, preferred an appeal to the District Judge. The District Judge, in a careful judgment, after considering the whole evidence, recorded the conclusion with regard to the separate claim of Paras Ram: 'Jamabandi for the year 1942-43 shows that Paras Ram and his brother were in possession of the land in dispute in their own right. This land is not shown to be mortgaged to Bhagta, The land in dispute was included in the mortgaged land for the first time in 1954.' However, as the defendant had proved his own separate right and title, which he had been asserting to the three plots, the appeal of Paras Ram was allowed and the plaintiff's suit with regard to three Khasra numbers was dismissed.

5. Learned counsel for the plaintiff-appellant has made an elaborate attempt to show that the three plots still in dispute were also comprised in the alleged mortgage of 3-12-1942. He has taken me through the Jamabandi entries of 1942-43 relating to Khewat No. 1 (Ex. P-7) Khatauni Nos. 4, 5 and 6 in village Sandoo of the State of Keonthal. Atma and Sadh, sons of Durga, are entered as hereditary tenants in Khatauni No. 4 'Marfat Bhagta' who is entered as 'Ghair Mauroosi' on behalf of Atma co-sharer. In column No. 9, meant for mentioning the rent, the entry is: 'Bila lagan bawaja tasuwar rahen beqabza mai Khatauni 5 and 6'. The 'mai Khatauni 5 and 6' in this column appears to be quite meaningless. Even if it was not introduced dishonestly by some one later, it is, at the highest, quite dubious. If they were really meant to indicate that there was a usufructuary mortgage of numbers in Khataunis 5 and 6 there would have been similar entries in the other Khataunis, Such an entry could not possibly enlarge the area or numbers actually shown in the mortgage deed set up by the plaintiff himself. None of the numbers now in dispute or any number proved to be its equivalent is shown in the 12 plots of Khatauni No. 4 of which the total area given is about 65 Bighas. Atma appellant could not claim more than half of that area in his share. Therefore, at the most, his share in 12 plots of Khatauni No. 4, over which we find an entry giving an indication that Bhagta was treated as an usufructuary mortgagee, could be said to have been mortgaged. It is in Khatauni No. 5 that plot No. 49-Min appears, out of which the plots over which Paras Ram claims possession, were later carved out. No. 49-Min is one of 9 plots shown in Khatauni No. 5 of Khewat No. 1 of this village. There is a Jamabandi of 1938-39 of the same village (Ex. P-6) showing that Khatauni No. 9 is equivalent of what became Khatauni No; 4 in 1942-43. Neither the entries of Khatauni No. 5 nor of Khatauni No. 6 contain any indication that Bhagta had anything to do with plots included in these Khataunis. A document filed by the plaintiff himself (Ex. P-14). described as a copy of the Partal of 29-7-1943, made by the Girda-war Qanungo, shows that the Girdawar had noted that it was only in Khatauni' No. 4 that Atma and Sadh had made an illegal usufructuary mortgage in favour of Bhagta who was, therefore, entered as 'Ghair Mauroosi' on behalf of the two hereditary tenants. The plaintiff's own documents, therefore, establish, beyond any doubt whatsoever, that the land which was the subject-matter of the usufructuary mortgage did not contain any of the three plots claimed by Paras Ram.

6. After this finding, it is not really necessary to discuss any other point as the plaintiff had failed to establish that he ever could or did mortgage any plots of land which had been claimed by Paras Ram so that no question of Paras Ram getting them as a tenant of the mortgagees could arise. The trial Court had erred because it did not take the elementary precaution of trying to correlate the land of which a mortgage was alleged to have been made by Atma in favour of Bhagta with the land shown in the plaint.

7. It is true that the three plots of land in possession of Paras Ram had been entered after 1954 as a part of the land subsequently shown to have been mortgaged to Daulat Ram. defendant No. 2 only. But, as Paras Ram was evidently in possession since long before 1954, this entry was obviously procured by the plaintiff in order to create a semblance of right which he had lost by the adversepossession of Paras Earn. It is, therefore, not necessary at all even to refer to the authorities cited by learned coxinsel for the appellant to substantiate the submission that a suit by a mortgagor creating an usufructuary mortgage would not be barred against a third person who had dispossessed a mortgagee. There is a conflict of authorities on this question. If, however, the possession of Paras Ram over the three plots of land was prior to the alleged usufructuary mortgage of 1954, as it clearly was, the proposition advanced, even if it could be accepted, would not help the plaintiff.

8. It was then vehemently urged by learned counsel for the appellant that it was not open to Paras Ram respondent to take the plea of adverse possession when he had also set up a tenancy right inasmuch as the two pleas were destructive of each other. Learned counsel relied strongly on Ram Palak Mahton v. Bilas Mahton, AIR 1952 Pat 69 where it had been observed by a Division Bench of the Patna High Court:

'It was not clearly open to the defendant to assert in one breath that he was not a tenant of the plaintiff, and in another, to assert that he was a tenant and his tenancy had not been properly determined,'

Learned counsel also relied on what Is reported as obiter dictum in Prince of Arcot Endowments Estate v. Ponnuswami Nattar, AIR 1955 NUC (Mad) 3924 as follows:--

'A party litigant cannot be permitted to assume inconsistent positions in Court to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponents. The principle is: Allegans contraria non est audiendus. (He is not to be heard who alleges things contradictory to each other.) This principle applies not only to successive stages of the same suit but also to another suit provided that the second grows out of the judgment of the first'

9. Learned counsel for the appellant has, however, not succeeded in showing that there is any rigid rule of law that inconsistent pleadings must be ignored. I am disposed to take the view that the fact that there are inconsistent pleadings may be properly considered by a Court in arriving at a correct conclusion on questions of fact. It is true that when a party has admitted something against Itself in the course of its pleadings, the admission may be treated as conclusive and debar it from going outside its pleadings to take up an inconsistent case. But,where a party has taken two inconsistent positions in the course of its pleadings, the pleadings of that party ought to be examined as a whole in order to determine their real meaning before determining the effect of the pleas. Moreover, such inconsistent pleas will have to be considered in the context of the whole evidence in the case including the admissions and pleadings of the other side.

10. In the instant case I find that the defendant Paras Ram had, at first, pleaded adverse possession over the three plots Nos. 109/3, 128 and 287/337/1 'openly as of right and as an owner from the time of forefathers'. He did not state that it was a possession adverse to the claim of the plaintiff only, but he had set up a right adverse to the whole world. After that, he stated 'in the alternative, if the replying defendant is not proved to be the owner, then the replying defendant has been holding the land comprised in the above three Khasra numbers as a tenant. The suit of the plaintiff is not within the period of limitation', It has to be borne in mind that the plaintiff had stated, in his replications, that Paras Ram. defendant No. 3, was not his tenant at all. In the plaint, the plaintiff had alleged that Paras Ram was holding on behalf of defendants Nos. 1 and 2. Paras Ram had denied the allegation that he was anybody's tenant and had claimed ownership. In the alternative, he had merely stated that, if he failed to establish his right as an owner, he was a tenant without stating whose tenant he would be. In other words, Paras Ram was falling back on a very vague claim without specifying against whom it was made only in case he failed to prove the larger right and title set up. I do not think that such a plea can possibly be read as precluding Paras Ram from setting up an adverse possession which he succeeded in proving up to the hilt. If a party, only out of abundant caution, takes up a contradictory stand, reserving its right to utilize that stand only if - the larger right is not proved, I am unable to hold that the plea, even if inconsistent with the earlier one, has any greater effect than showing that the party advancing it was under some uncertainty, as to the exact nature of its rights.

11. It is a well established proposition that even an admission against itself by a party has to be read in the context of all the facts and circumstances under which it is shown to have been made. Here, the plaintiff had unconditionally asserted that Paras Ram, defendant was not a tenant of his. Hence, the principle that a party cannot blow hot and cold could be applied against the plaintiff himself. The plaintiff, it couldbe urged, had precluded himself, by his pleadings, from taking up the case that Paras Ram was his tenant at any stage at all. Paras Ram, on the other hand, had taken up an inconsistent plea so as to keep it in reserve and utilise it in a particular contingency which had not arisen. He had, therefore, given up his claim to a tenancy when his case was argued before the lower appellate Court. He could not be precluded from relying on his earlier plea.

12. If authorities were necessary to cite on the proposition that inconsistent pleas can be taken in the alternative, I may refer to Firm. Sriniwas Ram Kumar v. Mahabir Prasad. AIR 1951 SC 177 where it was held:--

'A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative.'

I find that Courts have held, since quite early times in this country that, in a suit for possession of land brought against an alleged tenant, who is really a trespasser, 'the defendant merely by alleging tenancy in his written-statement, does not preclude himself from setting up the defence of law of limitation'. (See Dino Monee Debia v. Doorga Persbad Mojoom-dar, (1874) 21 Suth WR 70 Civil (FB).

13. In Keamuddi v. Hara Mohan Mondul, (1903) 7 Cal WN 294 it was held:

'It is open to a party to plead tenancy and limitation in the alternative.'

The Full Bench decision in Dino Monee's case, (1874) 21 Suth WR. 70 Civil (FB) (supra) was relied upon.

14. In Maidin Saiba v. Nagapa, (1883) ILR 7 Bom 96 it was held:

'A defendant has a right to set up the plea of tenancy and at the same time to rely on the statute of limitation.'

15. There is no need to multiply authorities on this question. I, therefore, cannot accept the submission on behalf of the plaintiff-appellant that the right of Paras Ram, defendant No. 3, flowing from his proved adverse possession could, not be given effect to by the lower appellate Court.

16. In the result, affirming the findings arrived at by the lower appellate Court. I dismiss this appeal with costs.

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