JUDGMENT
Prasun Kumar Deb, J.
1. This appeal has been preferred against the judgment and decree dated 16.11.1978 passed by the then Second Additional District Judge, Jamshedpur, in Title Appeal No. 1 of 1977 confirming the judgment of dismissal of Title Suit No. 162/265 of 1971-76 dated 29.11.1976 passed by the Additional Munsif, Jamshedpur.
2. While admitting this appeal on 26.11.1980, the following substantial questions of law were formulated:-
(i) Whether the plea of adverse possession to acquire title can be allowed upon a land acquired under the Land Acquisition Act?
(ii) Whether a record of rights not finally published can be considered for deciding title?
3. The facts of the case run as follows.:
The plaintiff-appellant Company filed the above-mentioned suit before the Additional Munsif, Jamshedpur, for declaration of title and recovery of possession and also for mesne profit in respect of R.S. Plot No. 189 and a portion of Plot No. 192 measuring 2.77 acres of land appertaining to Khata Nos. 13 and 77 situate in Mouza Sonari in the town of Jamshedupr, details of which were given in Schedule A at the foot of the plaint. The allegation of the plaintiff was that the plain tiff-Company become the owner or the suit land as part and parcel of the land acquired by the then Provincial Government under the Land Acquisition Act (for short ‘the Act’). It was stated that title and possession of the land was conveyed and delivered to the plaintiff-Company under the provisions of the said Act. The plaintiff.remained in possession of the land all through out, but at the revisional survey in 1937, the land in Plot No. 189 was found in possession of one Chaitan Khewat and the said land stood recorded in his name and his possession was recorded under Khata No. 30. When that Chaitan Khewat could not pay rent, then rent suit was filed against him and for non-payment of rent, the land was sold in auction in Execution Case No. 6 (c) of 1945-46 and the plaintiff-Company purchased the same and took delivery of possession on the basis of that execution case in auction sale.
4. The plaintiff’s further case is that it remained in possession after that but the land remained Patti and follow and taking advantage of the situation, the present defendant trespassed into the suit land on 19.8.1967 and unlawfully ploughed the same despite protest on the part of the plaintiff-Company and they remained in wrong occupation of the same, hence the present suit was filed.
5. The defendant No. 2 alone contested the suit and had contended inter alia in the written statement that the plaintiff has no cause of action in the suit that the suit is not maintainable and is barred by limitation as the plaintiff was never in possession within 12 years prior from the date of the suit. The tenure interest in agricultural land was vested in the State of Bihar in 1964 and so the plaintiff has no land in its khas possession. It is also contended that the suit is barred by the non-joinder of the necessary party and that defendant No. 1 has been un-necessarily impleaded as party in the suit. The map filed along with, the plaint of the suit is incorrect and the suit land is never acquired land of the plaintiff and it was never in his possession. The defendant also denied the socalled delivery of possession in the same of the plaintiff-Company and even if that be so, the plaintiff never exercised possession over the suit land. In the contention of real facts of the written statement, the defendant contended that previously the suit land were Patit land and the father of the defendant Radha Mahto came in possession of the land about 25-26 years ago and reclaimed portion of the land by the process of Kor-Kar and converted into valuable paddy lands and also constructed residential houses over that portion about 25 years ago. The lands in and around the residential portion were used as bari land by growing vegetables and as such the defendants’ father acquired occupancy right by Kor-Kar under Section 67 of the Chotanagpur Tenancy Act, 1908. The land converted to paddy land was measured in Plot No. 129. In the present settlement, house has been measured in Plot No. 157 and Vegetable gardens in Plot Nos. 158 and 151 and that all the above plots have been carved out of R.S. Plot Nos. 189, 192 and 461 which are in exclusive possession of the defendant since the days of his father. The defendant has also been granted raiyati parcha by the settlement authorities. During the present survey settlement, the plaintiff-Company most illegally and fraudulently in collusion with the settlement authority managed to get the said land mutated in his name. The defendant filed objection when he came to know of it and the settlement authorities decided the matter in favour of the defendant finding his actual physical possession over the suit land and as such his name was included and recorded in the present survey settlement operation. It is specifically claimed that the defendant has acquired right, title and interest over the land on occupancy right as contemplated under Section 67 of the C.N.T. Act and also through adverse possession as the defendant from the days of his father had uninterrupted possession of the land in the knowledge of the plaintiff-Company and adverse to their interest.
6. Both the parties adduced evidence and the original court held that even if the plaintiff-Company had got possession over the suit properties through delivery of possession in the above-mentioned execution proceeding, but there is no evidence to the effect that they had exercised possession over the suit land after such delivery of possession and that the defendant could be able to prove that they are in possession over the suit land for the last 25-26 years i.e. more than 12 years within the knowledge of the plaintiff-Company and as such the defendant has adverse possession over the suit land and when the plaintiff has not come up within 12 years then the suit is barred by limitation.
7. In the appellate court, the same judgment of dismissal of the plaintiff’s suit was maintained but it was further held that the plaintiff-Company could not prove by cogent evidence except by filing some papers regarding taking of delivery of possession over the suit land outside Chaitan Khewat. In deciding adverse possession in favour of the defendant, both the courts took notice of the fact that the draft publication of the recent survey settlement, the defendant’s name was included in the Kacha Khatain. Once this appeal was heard in presence of the appellant and in absence of the defendant-respondent, by judgment/order dated 16.12.1988 the appeal was allowed and the judgment and decree of the courts below were set aside and the suit was decreed but on filling petition by the defendant-respondent, ex-parte decree was set aside in the second appeal and the case was re-heard in presence of both the parties.
8. Mr. Debi Prasad, learned Counsel appearing for and on behalf of the appellants submitted that both the fact findings courts had erred in law in relying on the draft publication of the record of rights published under Section 83(1) of the C.N.T. Act regarding possession in favour of the defendant and that the right of adverse possession as decided in favour of the defendant was not only improper but illegal as ingredients of adverse possession such as (i) continuous, uninterrupted possession for more than 12 years, (ii) within the knowledge of the real owner and (iii) adversely/defying the real owner’s title over the property had not been decided nor even discussed in the judgments of the courts below and as such the judgments are not only bad but illegal too. His further submission is that in similar situation of the nearby plot of land, the plaintiff-Company got the decree and the same analogy ought to have been applied in the present case also.
9. Mr. M.Y. Eqbal, learned Counsel appearing for and on behalf of the defendant-respondents has submitted that when both the courts below had come to the concurrent finding of facts, then there is no scope of this Court to enter into the facts again for reappraisal of the evidence on record. His further submission is that when the suit was filed beyond the period of limitation then the learned courts below had rightly dismissed the suit of the plaintiffs and the adverse possession comes automatically in favour of the defendants even if it is held that the plaintiff was recorded properties over the suit property. In aid of the submission, Mr. Eqbal has relied on a decision of this Court in the case of Sribhagzuan Singh and Ors. v. Rambasi Kuer and Ors. , Govind Yadav and Ors. v. Deoki Devi and Ors. and Kshitish Chendra Base v. Commissioner of Ranchi .
10. The plaintiff-Company’s case is pure and simple claiming possession on the basis of title over the property when it was alleged that the defendant had trespassed into the suit land on a particular date i.e. on 19.8.1967. There is not an iota of evidence except Tahsildar who had deposed for and on behalf of the plaintiff-Company to the effect that the land was lying Patit (fallow) after the plaintiff-Company took over possession through court’s process by delivery of possession in the rent execution case in the year 1945-46 and that the defendant had trespassed in the year 1967, but the defendant could prove not only by oral evidence but by different documentary evidence to the effect that the and was not a Patit land rather a part of it was the paddy land as has already been recorded in the revenue records and by showing photographs which had been marked exhibit in the case, it could be found that a part of the suit land was used as paddy land, another part as Orchard and also permanent structures over it. When the revenue records as was alleged by the defendant in collusion with the plaintiff-Company was recorded as Patit land, then objections were filed by the defendant and on his objection after verifying locally, the records were corrected accepting the contention of the defendant that a part of the land was paddy land. Moreover, it appears that the plaintiff-Company was not even aware of the position of the suit land as one plot has been left out in the suit land itself. When the delivery of possession in the rent execution case was effected, it appears that other plots of land including the suit land were taken over possession and after such taking over possession of the plaintiff-Company, what it did over the land, has not been stated any where either in the plaint or in the evidence adduced from the side of the plaintiff. From 1945-46 till the date of cause of action for filling of the suit, it was the case of the plaintiff that the land remained fallow which was totally disbelieved not only on oral evidence but also on the documentary evidence. That the defendant claimed his right over the suit on reclamation from the days of late father was apparent as at every stage, he was raising objection and defying the title of the original owner he was possessing the land.
10. The suit was filed in the year 1971 and there is no evidence from the side of the plaintiff-Company as to how they exercised their possession over the suit land till the date of alleged dispossession in the year 1967. It is not a case that the learned court below had relied only on the Kacha Khatian issued in the name of the defendant during the survey settlement operation under Section 83 of the C.W.T. Act that was only taken as an aid in holding the possession of the defendant over the suit land. It is true that Kacha Khatian did not give any presumption unless the same is permanently issued and even such inadmissible evidence can also not be used for the collateral purpose when the purpose is for showing possession over the property. The residential house could not be built in a day. It is not the case any where in the plaint that after trespassing, the defendant had constructed houses over the suit land. The decisions of the Revenue authorities in Case No. 217 of 1972 and Tanaja No. 7 of 1972 have been taken into consideration by both the courts below in finding possession over the suit land. When the description of the suit land is not known by the plaintiff-Company then it can be very well understood that there was never any exercising of possession by the plaintiff-Company over the suit land. The defendant has categorically stated that he was continuing in possession over the suit land since the days of late father for the last 24-25 years as of his own right by covering the land to Kor-Kar. He has also stated that he had never been asked by any authorities of the plaintiff-Company to vacate the suit land nor he had seen the plaintiff Company ever exercising their possession or claiming right over the suit land by the plaintiff-Company. In such position, it was rightly held that the plaintiff-Company had not come up within 12 years of their socalled dispossession and the suit is barred by limitation as contemplated under Section 65 of Limitation Act. as the same has been adversely possessed by the defendant. Even if the original court’s finding is taken to be correct although the same has been disbelieved by the first appellate court regarding taking over of possession by the plaintiff-Company in the year 1945-46 through delivery of possession in rent execution case then also it can be very well understood from the circumstances of the case that those delivery of possession remained only in paper transaction and no where there was any physical exercise of possession from the side of the plaintiff-Company. Even the change of nature of the suit land was remained unaware of the plaintiff-Company. The description of the suit land is also not proper which shows non-exercise of possession from the side of the plaintiff-Company even after taking of delivery of possession through rent execution proceeding.
11. Mr. Debi Prasad, appearing for and on behalf of the appellant submitted that adverse possession of a party cannot be declared unless the ingredients of ad verse possession are proved as mentioned above. Here, in the present case, the defence is of resisting the plaintiff’s claim of title to the effect that the defendant is exercising possession of the suit land for the last 12 years prior to the filing of the suit. It remains the burden duty on the part of the plaintiff to prove that it had exercised possession within the last 12 years so that his suit can come within the ambit of Article 65 of the Limitation Act. When the plaintiff has miserably failed, so it does not remain on the workings of Article 65 of the Limitation Act itself that the defendant should prove all the ingredients required for the purpose of adverse possession. Moreover, in the present case, where the evidence has been adduced from the side of the defendant, it could be found that possession was exercised by the defendant as of his own right which goes notorious to the real owner. No where it has been urged from the side of the defendant that they had ever taken in settlement form the plaintiff-Company to come over in possession over the suit land. Even regarding the classification of the land, the defendant, raised objection before the revenue authorities and the finding with regard to possession and class of land, on local inspection it was recorded as paddy land and not a Patit land as claimed from the side of the plaintiff. Adverse possession is not required to be specifically pleaded. If the circumstances appear so, the courts are bound to give such relief to the parties. Here the question of relief in favour of the defendant does not come in. From the nature of the suit, it was to be found out whether the plaintiff had come up within 12 years or not for declaration of his title coupled with possession. If the plaintiff fails so then automatically it adversely affects the plaintiff’s right and goes in favour of the defendant.
11. Moreover, oh factual aspect when both the courts below had concurred in finding of facts, then there is little scope of this Court to enter into the same on reappraisal of the factual position by scrutinising evidence adduced by the parties. In view of the above findings, I do not find any error of law committed by the learned courts below in giving a decision regarding the dismissal of the plaintiff’s suit.
12. In the result, I do not find any force in this second appeal and hence the same is rejected but without costs.