PETITIONER: MUSAMMAT MURTI DUSSADHIN AND OTHERS Vs. RESPONDENT: SURAJDEO SINGH AND OTHERS DATE OF JUDGMENT: 11/08/1964 BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SUBBARAO, K. CITATION: 1965 AIR 875 1965 SCR (1) 20 CITATOR INFO : F 1972 SC1408 (12) ACT: Indian Limitation Act, 1908 (9 of 1908), Arts. 142, 144-Suit for Ejectment-Plaintiff's title admitted but possession as tenant claimed Whether Art. 142 or Art. 144 applies. HEADNOTE: One M brought a suit in the Munsif's Court against a number of persons including the appellants for a declaration that certain land constituted the bakshat interest of the plaintiff, who had been and continued to be in possession and occupation thereof. In the alternative he prayed for possession if the plaintiff be deemed to have been dispossessed for a proceedings under s. 144 of the Code of Criminal Procedure had cast a doubt on his title. This suit followed the proceedings under s. 144 of the Code of Criminal Procedure which resulted in a decision against the plaintiff. The defendants did not deny the title of the plaintiff but asserted that the plaintiff gave these lands to the defendants to cultivate them on batai over more than 25 years ago, and since then the defendants had been and were in peaceful cultivating possession over the same and had also acquired occupancy rights in them. The Munsif dismissed the suit upholding the pleas of defendants. The plaintiff appealed and succeed before the Appellate Court, which was of the view that the onus was on the defendants to prove that they were rayats of the land and that they had occupancy rights in these lands and that the defendants had not been able to prove their case about settlement and possession. The High Court, on appeal by the defendants, held that having regard to the facts and circumstances of this particular case, the burden was on the defendants to show whether they have been in possession for 12 years or more, and dismissed the appeal. On appeal by special leave, HELD : On the facts of the case Art. 144 and not Art. 142 applied. If a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff- as a tenant, the case must proceed on the defendant's plea, and for the purpose of deciding whether Art. 142 or Art. 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art. 142, for neither the plaintiff nor the defendant alleges decision or discontinuation of ion. [24F- F] Jaldhari v. Rajendra Singh, A.I.R. 1958 Pat. 386, approved. The Official Receiver of East Godavari v. Chava Govinda Raju, I.L.R. [1940] Mad. 953 and Behari Lal v. Sundar Das. I.L.R. (1935) 16 Lab. 442, distinguished. Kumbham Lakshmanna v. Tangirala Venkateswarlu, (1948-49) L.R. 76 I.A. 202 and Seturatna-in Aiyar v. Venkatachala Gounden, (1919) L.R. 47 I.A. 76, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 625 of 1960.
Appeal by special leave from the judgment and decree dated
July 17, 1958, of the Patna High Court, in Appeal from
Appellate Decree No. 890 of 1954.
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B, C. Misra, for the appellants.
R. V. S. Mani, E. C. Agarwala and P. C. Agarwala, for
respondents Nos. 1. (a) to 1 (k) and 1 (m) to 1 (r).
The Judgment of the Court was delivered by
Sikri J. One Mohd. Mir Khan brought a suit in the Court of
the Munsif Aurangabad against a number of persons for a
declaration that 8 bighas of land under khata No. 22,
situate at Mauza Gopalpur, Dist. Gaya, constituted the
bakasht interest of the plaintiff, who had been in
possession and occupation thereof, and he prayed in the
alternative “that if in the opinion of the Court the
plaintiff be deemed to have been dispossessed from the suit
land under S. 144 (Cr. P.C.), in that case, the plaintiff
may be put in sir possession thereof on dispossession of the
defendants and 3 decree for future mesne profits from the
date of dispossession till the date of realisation, may also
be passed in favour of the plaintiff.” He alleged in the
plaint that the said sir land had been in sir possession of
the plaintiff and 9.81 acres (including the said 8 bighas is
recorded in the Record of Rights, i.e., Survey Khaitan, as
the bakasht land of. the plaintiff. He further alleged that
he had sown seeds in two bighas in the month of Asadh 1353,
when defendant, 2, 3 and 5 interfered with his possession.
Proceeding% under s. 144, Cr. P.C., were started which
resulted in a decision against him, He asserted that the
defence of the above defendants in s. 144 proceedings that
plots Nos. 587, 832 and 846 and portion of 881 had been
settled by him and that they were in possession, was false.
He further stated that after the s. 144 proceedings he grew
rabbi crop in the suit land after cultivating the same with
his own plough and bullock and was still in possession but
since a cloud had been cast over the title of the plaintiff
due to the decision in s. 144 proceedings, the plaintiff was
entitled to get his title to possession over suit land
confirmed by court.
It is apparent from the above recital that except in the
relief clause, the plaintiff asserted that he had been in
possession and continued to be in possession and that he had
title to the land. It was in the alternative that he prayed
for possession if the plaintiff be deemed to have been
dispossessed.
The defendants in their written statement did not deny the
title of the plaintiff to the suit land but asserted that
“the plaintiff being the only member in his house used to
remain outside in some service and consequently he gave the
entire area of the lands in khata No. 22 to these defendants
to cultivate them on batai over more than 25 years ago, and
since then the defendants have been
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and are in peaceful cultivating possession over the same and
have also acquired occupancy rights in them.” They further
alleged they have been dividing crops regularly to the
plaintiff but the plaintiff never granted any receipt to
them.
The Munsif held that the plaintiff settled these lands with
the defendants some 28 years ago. On the question of
possession he held that ever since the settlement, the
defendants have been in possession and cultivating the
lands, and that the plaintiff since after the settlement has
not been in possession. He concluded that the plaintiff
having been out of possession for more than 12 years was not
entitled to possession. He, in consequence, dismissed the
suit with costs. The plaintiff appealed and succeeded
before the Appellate Court. The Additional Sub-Judge was of
the view that “the onus was on the defendants to prove that
they were raiyats of the lands and that they had acquired
occupancy rights in these lands and unless they succeeded in
proving these, they could not successfully resist the
plaintiff’s suit.” After going through the evidence, he came
to the conclusion that the defendants bad not been able to
prove their case about settlement and possession.
Five defendants appealed to the High Court. It was
contended before the High Court on behalf of the defendants
that the Appellate Court had wrongly put the onus on the
defendants, but the High Court, relying on Jaldhari v.
Rajendra Singh(1) did not accede to this contention. The
High Court held that the title of the plaintiff had been
admitted by the defendants and their case of settlement and
possession for 12 years had been rejected by the Appellate
Court. The plaintiff had never alleged that he had been
dispossessed. The learned Judge further observed as
follows:
“As the defendants never got possession since
the case of the defendants, have been rejected
and the plaintiff having never alleged that he
has been dispossessed, it is clear that once
title has been admitted by the defendants, on
the pleadings it follows that the landlord is
in possession and if the landlord is in
possession, on the pleadings of the parties
in the present case there can be no question
of coming to a formal finding of fact that the
plaintiff was in possession because on the
pleadings the plaintiff never claimed that he
had been ejected or dispossessed and the
defendants never asserted that they forcibly
ejected the plaintiff.”
In conclusion, the learned Judge held that having regard to
the facts and circumstances of this particular case, the
burden was on
(1) A.I.R. 1958 Pat. 386.
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the defendants to show whether they have been in possession
for 12 years or more. In the result he dismissed the
appeal. The defendants. having obtained leave from this
Court, the appeal is now before us for disposal.
It has been argued on behalf of the appellants that the Full
Bench judgment relied on by the learned Judge was wrongly
decided and that on the facts of this case, Art. 142 and not
Art. 144 governed the case. We are of the opinion that the
Full Bench was correctly decided and that Art. 1.44 applied
to the facts of this case.
The learned counsel for the appellant urged that in an
action in ejectment, one of the things that the plaintiff
must prove is his title to immediate possession. This is
true and there is no dispute about this proposition. He
further urges that where the plaintiff does not admit
tenancy, although the defendant alleges tenancy, he must
show possession within 12 years of the suit. He says that
the defendants have admitted title of the plaintiff but not
possession. To support his proposition, the learned counsel
for the appellant, apart from Patna cases which have been
overruled by the Full Bench, relied on The Official Receiver
of East Godavari v. Chava Govinda Raju(1) and Behari Lal v.
Sundar Das.(2) ‘In the former case, an auction purchaser was
obstructed by a person who claimed it as his own ancestral
property. The auction purchaser sued for declaration and
injunction. the facts are quite different and in none of the
cases discussed by the learned Chief Justice in his judgment
a defendant had claimed possession under the plaintiff but
had asserted right by adverse possession.
In Behari Lal v. Sundar Das (2 ) the facts as stated in the
head note were these:
“The plaintiffs instituted a suit for
possession of a house against N.B. and N.D.,
alleging that in 1927 they had rented the
house to N.B., who had sublet it to the
defendant N.D. The plaintiffs stated in the
plaint that they were the owners of the house
and that they had instituted a suit previously
for recovery of rent against both the
defendants, but N.D. had asserted his own
title to the property and the suit had been
dismissed against him, but bid been decreed
against N.B.”
The High Court field that the plaintiffs clearly pleaded
possession and dispossession, i.e., possession through their
tenant N.B. and dispossession by the latter’s sub-tenant
N.D., when he set up a
(1) I.L.R. 1940 Mad. 953.
(2) I.L.R. (1935) 16 Lah 442.
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title of his own. This case is again distinguishable for
the subtenant had clearly asserted his own title and denied
that of the plaintiff.
Another case cited by the learned counsel for the appellant
is Kumbham Lakshmanna v. Tangirala Venkateshwarlu, (1) in
which the Privy Council reviewed most of its earlier
decisions on this branch of the law. In this case, a holder
of a minor inam sued to eject the tenants from the holding,
and the Privy Council held that the burden was on the
plaintiff to -make out a right by proving that the grant
included both the melvaram and kudivaram interests, or that
the tenants or their predecessors were let into possession
by the inamdar under a terminable lease. One of the cases
referred to is Seturatnam Aiyar v. Venkatachala Gounden,(2)
and with reference to it the board observed at p. 224, as
follows
“In the above case it was either admitted or
found as a fact that the tenants had been let
into possession by the landlord who was the
absolute owner. When the tenant claims rights
of occupancy in such circumstances their
Lordships, in Nainapillai Marakayar v.
Romanathan Chettiar, (3) laid down the
principle that the burden will be on him to
prove that he has such rights.”
Is the position the same when the plaintiff does -not admit
any tenancy but the defendant alleges tenancy but of a
permanent nature ? It seems to us that if a defendant not
only admits title of the plaintiff but also admits that he
derived possession from the, plaintiff as a tenant, the case
must proceed on the defendant’s plea. and for the purpose of
deciding whether Art. 142 or Art. 144 applied, it must be
assumed that the plaintiff has not been dispossessed or has
not discontinued his possession within the meaning of Art.
142, for neither the plaintiff nor the defendant alleges
dispossession or discontinuation of possession.
Construing the plaint as a whole, it is clear that the
plaintiff never alleged dispossession or being out of
possession. He asserted ownership of the suit land and
claimed that he was in possession. Section 144 Cr. P.C.
proceedings seemed to have cast a doubt on his title and he
accordingly brought a suit for a declaration. It is true
that in the alternative he prayed for a decree for
possession and mesne profits. He was careful even in this
alternative prayer to say that he could only be deemed to he
dispossed by s. 144 proceedings. The defendants did not
deny the title of the plaintiff to the suit land but
asserted that they had been settled and acquired
(1) (1948-49) L.R. 76 I.A. 202. (2) (1919) L.R. 47 I.A. 76.
(3) L.R. 51 I.A. 83.
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occupancy rights. On these facts it seems to us that it was
Art. 144 and not Art. 142 that applied.
In the result, agreeing with the High Court, we hold that
the suit was not barred. Accordingly, the appeal fails and
is dismissed, but as there is no finding by the courts below
that the plaintiff is in possession, the decree will be
modified and limited lo a decree for possession of the land
in dispute.
In the circumstances of the case the parties will bear their
own costs in this Court.
In view of our decision on the question of limitation, it is
not necessary to deal with the point of abatement of the
appeal raised by the learned counsel for the respondents.
The appellants wilt pay court fees, which would have been
paid by them if they have not been permitted to appeal as
paupers.
Appeal dismissed and decree modified.
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