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Calcutta High Court
Hiatunnessa Bibi And Ors. vs Kailash Chandra Saha on 31 March, 1905
Equivalent citations: 17 Ind Cas 224
Author: F Maclean
Bench: F Maclean, Mitra


JUDGMENT

1. This is a suit to recover possession of a parcel of land of which the plaintiff alleges that he was dispossessed by the defendants in the year 1299. The plaintiff’s case was that the land formed part of a holding No. 267, which had been settled with him. Some four months after the institution of the suit, the plaintiff put in a petition before the Munsif in which he said that the disputed land was covered by plots Nos. 498, 499 and 500 of the Collectorate Chittas prepared in the year 1268.

2. The defence set up was that the disputed land belonged not to the plaintiff’s holding bat to a holding which the defendants had acquired by purchase from Korban Ali in the year 1291.

3. Several issues were drawn up but it is only necessary, for the purposes of this appeal to notice two of them–the third and the fourth. The third is–“is the claim barred by limitation?” The fourth is–“Whether the plaint land appertains to plaintiff’s jama and the defendants have wrongfully dispossessed him?” These issues were tried together and the Munsif found that the disputed land did not belong to the plaintiff’s holding and farther that the plaintiff had never been in possession of this land within 12 years from the date of institution of the suit. He accordingly dismissed the plaintiff’s claim.

4. On appeal, the District Judge has reversed both these findings of the Munsif and decreed the plaintiff’s suit. The first point taken on appeal is that the District Judge has proceeded on the assumption that holding No. 267 comprises the Chitta dags Nos. 498, 499 and 500. Not only, is it said, is this a pure assumption unwarranted by evidence but it was opposed to the distinct finding of the Munsif that the holding did not consist of those three dags.

5. I am, however, unable to discover in the Munsif’s judgment any such finding. What the Munsif has said is that the plaintiff had totally failed to prove that Nos. 498, 499 and 500 Chitta dags covered the land in suit. This statement of the Munsif clearly proceeds also on the assumption that the holding No. 267 was covered by the 3 dags specified, for unless that assumption were made, the statement would be wholly irrelevant in reference to the trial of the issue before him. “Reading the judgments both of the Munsif and of the District Judge, it appears to me that the statement of the plaintiff that the holding No. 267 comprised these three dags was, in no way, disputed by the defendants. Furthermore, the objection that the District Judge had made an assumption unwarranted by evidence is nowhere taken in the grounds of appeal preferred to this Court, and from this fact, it appears to me clear that the defendants not only did not dispute the plaintiff’s allegation in this matter but that they were not even in a position to dispute it, and, therefore, acquiesced in it. I am, therefore, of opinion that the objection now under consideration is not one that should prevail, It would be impossible to decide it properly without going into the evidence which is not before me. It was not taken in the grounds of appeal and the appellant has not even put it within my power to decide” it as he has not called for the Chittas which have been taken back by the plaintiffs. The second ground of appeal is that the District Judge has come to no proper finding on the issue as to limitation. The Munsif discussed this question very thoroughly on the evidence before him and on that evidence and the circumstances and the probabilities of the case, he found himself unable to believe that the plaintiff was ever in possession of the disputed land or wrongfully dispossessed therefrom. Now, it was for the plaintiff to prove that the dispossession occurred within 12 years before the institution of this suit. But all that the District Judge said on this point is that “it does not appear that the plaintiff’s claim for possession is barred.” Considering that the District Judge’s judgment was one of reversal, it appears to me that a mere statement of this sort was not sufficient. When the Munsif, after a detailed discussion of the evidence, had come to the conclusion that the plaintiff was never in possession of the disputed land or wrongfully dispossessed therefrom, it appears to me that the District Judge was bound to give some reasons for the finding to the contrary at which he arrived.

6. The case will, therefore, be remanded to the District Judge that he may come to a proper finding on the question of limitation that was raised in this case. The District Judge will record his finding and return the record with his finding within six weeks.

7. The record will be sent down to him at once.

8. The lower Appellate Court submitted its finding to the High Court, and the appeal came on again before Mr. Justice Geidt, who referred it to a Division Bench.

JUDGMENT

Francis Maclean, C.J.

9. This is an appeal from the decision of the officiating Judge of Murshidabad. It came on appeal before Mr. Justice Geidt sitting alone and he remanded it, because he thought that the District Judge had not sufficiently found whether the plaintiff had been in possession of the property in dispute within twelve years before the institution of the suit. He, therefore, remanded the case for inquiry on that point, keeping the case on the file of this Court, That inquiry has now been made and has resulted in a finding that the plaintiff was not in possession within twelve years before the filing of the suit. Mr. Justice Geidt, acting under the powers given him by the rules of this Court, has sent the case to be disposed of by the Judges taking the Presidency Group, and it, therefore, now comes before us. The whole case, that is to say, the appeal from the District Judge is now before us as it was originally before Mr. Justice Geidt. It is contended, on behalf of the appellant, that we are bound to adopt the second finding on the question of possession and so to dismiss the suit. On the other hand, it is contended that, the whole case being now before us, it is open to us to decide whether the remand order of Mr. Justice Geidt was justified, the contention being that the District Judge had found, as a fact, that upon the question of possession the plaintiff was not barred, and, consequently, that the remand order ought not to have been made. We must either decide the whole matter now, or send the case back to Mr. Justice Geidt. If we were to decide the appeal on the last finding as to possession by the Judge on the remand and so dispose of the whole case, we should deprive the plaintiff of his right to appeal against the propriety of the remand order. If we send the case back to Mr. Justice Geidt, it would, I think, be open to him to re-consider his order for the remand, but, if he did not do that, but dismissed the suit on the last finding as to possession, the plaintiff could appeal and challenge the propriety of the remand order. To adopt this circuitous procedure would only entail further and unnecessary cost on the parties: and, instead of driving the parties to this course, I think we may deal with the whole matter, as Mr. Justice Geidt has asked us so to do and treat the matter as if the propriety of the remand order were now before us, as it would be on an appeal from Mr. Justice Geidt. The appellant asks us to adopt a course which would have the effect of depriving the plaintiff of his right of appeal against the remand order: we ought not to do this. I think, we must regard the substance, and not the technicalities of the case. I do not think the remand order should have been made, looking at the judgment of the District Judge as a whole. He found the title in favour of the plaintiff and his language is, I think, sufficient to warrant us in saying that he found that the plaintiff had been in possession within 12 years before the institution of the suit. If we regard his language at page 13 of the printed paper book, we find that he had clearly directed his mind to this question of possession for this was the only point about possession which resulted in his finding that it does not appear to me that the plaintiff’s claim for possession is barred.” To what can these words apply except to the question of whether or not the plaintiff had been out of possession for 12 years before suit? It is difficult for us to say that there is not a sufficient finding that the plaintiff had been in possession within 12 years before suit. 1 think, our proper course is to dispose of the whole matter and not to drive the parties to further waste of money and time by sending the case back to Mr. Justice Geidt, with the result that if he ultimately decided in the present appellant’s favour, a further appeal by the plaintiff would be inevitable.

10. The appeal fails and must be dismissed with costs.

Mitra, J.

11. I agree.


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