JUDGMENT
P.K. Deb, J.
1. This appeal has been preferred by the above-named applicants who were defendant Nos. 13 and 14 in Partition Suit No. 5 of 1974 which was allowed against the appellants by judgment and decree dated 2.3.1977 by the then Subordinate Judge, Hazaribagh.
2. The Respondent No. 1 as plaintiff filed the above-mentioned suit for partition of his share from defendant Nos. 1 to 12 in respect of the lands of khata No. 122 of village Kuthantia. PS-Chatra, Hazaribagh. The total area in respect of that khata No. 122 is 2.60 acres. The defendant Nos. 13 and 14 who are the appellant in the case were not the original co-sharers but they have come to possess the land and as such according to the plaintiffs, those defendant Nos. 13 and 14 have got no right over the suit land. Objections were raised regarding the payment of fixed Court fee for partition suit from the side of defendant Nos. 13 and 14 and as such the plaint was amended by inclusion of declaration that the defendant Nos. 13 and 14 have got no title over any part of the suit property by their purchase in the year 1968. Defendant Nos. 1 to 12 filed written statement but defendant No. 12 did not file any written statement. Ultimately, plaintiff and defendant Nos. 1 to 12 had filed a compromise petition by which the plaintiffs claim over the suit property had been admitted. Only defendant Nos. 13 and 14 contested and suit. According to the plaintiff, the suit land belonged to his predecessor, Surmali Mian and on is death the whole property by raiyati inheritance and succession had been devolved to plaintiff and defendant Nos. 1 to 12, but the defendant Nos. 1 to 12 did not want to give proper share of land to the plaintiff, so he had no other alternative but to file this suit for partition.
3. The defendant Nos. 13 and 14 in their original written statement admitted that Surmali Mian, the predecessor of plaintiff and defendant Nos. 1 to 12 were the original tenant but he surrendered his tenancy to the landlord, Ganauri Hakim and then the ex-landlord Ganauri Hakim settled this land in Khata No, 122 in favour of Hafiz Abdul Rahim and on his death his widow Bibi Paro inherited property and then sold by a registered deed of sale in the year 1968 in favour of defendant Nos. 13 and 14 and since then they are in possession of a part of the suit property. The defendant Nos. 13 and 14 only had pleaded their right over a portion of the suit property by dint of their purchase from Bibi Paro, they have not pleaded specifically for adverse possession, but during the course of evidence they pleaded for adverse possession also.
4. It may be mentioned here that except a short plea being taken in the first written statement filed by the appellants that they have traced their title from Hafiz Abdul Rahim who got the land by way of settlement from Ganuari Hakim and then by way of purchase in the year 1968 from Bibi Paro, wife of Hafiz Abdul Rahim. But, in the additional written statement filed, they have tried or made an attempt to trace the title as to how Ganuari Hakim became the landlord in place of Doma Sao who was the landlord in respect of Khata No. 122 by way of partition etc. etc. But that additional written statement was never accepted by the Court below. Such additional written statement on factual aspect was filed by the defendant Nos. 13 and 14 on the amendment of the plaint being allowed in respect of payment of Court fee by the plaintiff for declaration that the defendant Nos. 13 and 14 have got no title by their alleged purchase deed of 1968.
5. On the pleadings of the parties, following issues were framed by the learned Court below:
(I) Has the plaintiff any cause of action for the suit?
(II) Is the suit bad for defect of parties?
(III) Is the suit maintainable as framed?
(IV) Is the suit barred by limitation and adverse possession?
(V) Is the plaintiff entitled to declaration of title against defendant Nos. 13 and 14 with respect to the lands of Khata No. 122?
(VI) To what relief, if any, is the plaintiff entitled?
6. For and on behalf of the plaintiff, nine PWs have been examined. Those witnesses have deposed regarding the title and possession of the plaintiff and defendant Nos. 1 to 12 in respect of the suit property. Against that, six DWs have been examined out of whom DWs 1 to 5 adduced evidence in respect of the possession of defendant Nos. 13 and 14 in respect of a part of the suit property.
It may be mentioned here that the defendant Nos. 13 and 14 have not adduced any evidence in the case nor they have exhibited their title deed. The learned Court below decided all the issues in favour of the plaintiff. The vital issues which being issue Nos. 4 and 5 had been disclosed with reference to the documentary evidence and oral evidence adduced by the parties and the learned Court below came to the finding that defendants have miserably failed to prove their title over any potion of the suit khata, nor they could be able to prove their plea of adverse possession or possession thereof in respect of the suit property. Hence, the suit was decreed in favour of the plaintiff preliminary for partition and also in respect of declaration that the defendant Nos. 13 and 14 have got no title or interest over the suit property.
7. The judgment of the Court below has been assailed by Mr. A.N. Deo, Advocate appearing on behalf of the appellants that the learned Court below misconstrued the case of the defendants when he had not considered the additional written statement filed by them after amendment of the plaint made by the plaintiff.
8. During the course of argument, it has been admitted specifically by Mr. Deo that in the first written statement the tracing of title by the defendants were not proper but subsequently in the additional written statement the same had been clarified and stated in details. In the additional written statement, it was stated that Daman Sao was the original landlord of Khata No. 122. There were several other khatas included amongst Daman Sao and his co-sharers including that of Ganauri Hakim and in the year 1926 there was a partition and the suit khata had fallen into the share of Ganauri Hakim and then there was surrender of tenancy right by Surmali Mian in favour of Ganuari Hakim and then Ganuari Hakim settled its land in khata No. 122 in favour of Hafiz Abdul Rahim, who came in possession over the land and on his death his wife Bibi Paro remained in possession and then sold the lands in the year 1968 in favour of defendant Nos. 13 and 14 and since then they remained in possession.
9. The additional written statement filed by the defendant Nos. 13 and 14 was on 22.1.1977. By order dated 8.2.1977, the Court below has rejected the prayer of acceptance of that additional written statement. Cogent reasons have been given in the order itself. The defendant Nos. 13 and 14 raised objection in their first written statement that the suit being a partition suit simplicities, there cannot be any declaration regarding the title of defendant Nos. 13 and 14 and if such declaration i£ sought then the plaintiff must come up with proper frame of suit and on payment of proper Court fees. On this plea being taken by the defendant Nos. 13 and 14, plaintiff came up for amendment of the plaint by payment of Court fee on Rs. 500/- which was the consideration money of the sale deed in favour of defendant Nos. 13 and 14. The learned Court below has assigned reasons in the order dated 8.2.1977 that the formality has been observed regarding amendment of the plaint on payment of Court fee alone as per objection being raised from the side of the defendant Nos. 13 and 14. Factual aspect as stated in the plaint had never been altered or added with and as such there was no scope for the defendant Nos. 13 and 14 who remained only the contesting defendants after the compromise of the suit between the plaintiff and the defendant Nos. 1 to 11 and that defendant No. 12 did not contest the suit to raise further plea on the factual aspect. Against the order dated 8.2.1977 rejecting the additional written statement, no revision has been preferred by the defendant Nos. 13 and 14 and ass such that order remained in vogue all along.
10. Mr. Deo, learned advocate, appearing on behalf of the appellants has submitted that even if that order was not challenged in revision, but when that order went against the defendants-appellants, they are at liberty to raise this point in First Appeal also.
I have no doubt that the contention of Mr. Deo is legally sound, but considering the reasoning being given, I do not find that the defendants have got any forceful contention regarding non-acceptance of their additional written statement. The formal amendment in the plaint was made regarding payment of Curt fee for the declaration sought and against that in the additional written statement, the contesting defendants went on elucidating their further pleas regarding tracing of title, hence I do not find that in non-accepting the additional written statement the learned Court below had committed any error of law.
11. Now, for arguments sake, let me take up the case of the defendant as elucidated in the additional written statement also to examine whether any relief can be granted in favour of the defendant-appellants.
The defendants, plea is admission of Surmali Mian’s occupancy right over the suit property. It was also admitted that ex-landlord was Daman Sao. Their case was only that in a partition suit in the year 1926 suit khata fell into the share of co-sharer, Ganauri Hakim. About that implementation of the decree no papers have been submitted except a certified copy of the decree of the partition suit in the year 1926. Unless that implementation order of allotment is there by way of execution of the decree in favour of Ganuari Hakim, that decree alone remains a paper decree only.
12. For arguments sake, let us take the position that Ganuari Hakim was being substituted in place of original landlord Daman Sao on the basis of the partition decree then also it remains the bounden duty on the part of the defendants to prove that Surmali Mian had surrendered his occupancy right in favour of Ganauri Hakim. There is not an iota of either documentary or oral evidence to that effect except that some bare statements made by DWs 1 to 5 that vendor of defendant Nos. 13 and 14 Bibi Paro and before that her husband Hafiz Abdul Rahim were in possession. Such possession without having any right or title cannot have any basis that too on oral statements alone. Thus, even if the additional written statement of the contesting defendants are also taken into consideration then also it must be held that they have completely failed to prove in tracing their title over the suit land, or a part of it. Then the position remains only to the effect that the defendants remained in possession over a part of the suit khata and as such it should be considered as to whether they have acquired any title over their possessed land by right of adverse possession or not.
13. Mr. V. Shivnath, appearing on behalf of the respondents, has opposed at the very first instance that the appellants should not be allowed to argue on adverse possession as such adverse possession was never pleaded either in the original written statement or in the additional written statement.
14. It is true that plea of adverse possession was not being taken by the defendant-appellants in either of their written statement or additional written statement, but now it has become the settled principles of law that even if no plea of adverse possession is made then also the Court should not overlook such plea if on the basis of the record a case of adverse possession is made out.
15. There are evidence of possession on both sides. On behalf of the plaintiff, nine witnesses have been examined and on behalf of the defendants, six DWs have been examined. On the plaintiffs side, possession over the suit property has been asserted while amongst the defendants’ witnesses, DWs 1 to 5 had made attempt to prove not only the possession of the defendant Nos. 13 and 14 over the part of the suit property but also about the possession of their vendor and the predecessor. While discussing the main issues i.e., Issue Nos. 4 and 5, the learned Court below has discussed the evidence of eye-witnesses on the defendants side to find out regarding the possession of the defendants.
16. I have personally scrutinized the evidence of these two witnesses also. If the evidence on the plaintiffs side and that of the defendant’s side regarding possession are being taken side by side then it could be found that appellants-defendants could prove that the defendant Nos. 13 and 14 were in possession of a part of the suit land, but their possession is only from the year 1968 when the suit was filed in the year 1974, so their possession alone since 1968 cannot create the right of adverse possession against the real owners. About the possession of the vendor, Bibi Paro or her predecessor, no plausible evidence could be brought from the side of the defendants. I have already mentioned that defendants-appellants failed miserably to prove their title over the lands of their tracing of title in respect of a part of the suit land. It appears that the defendant Nos. 13 and 14 had casually fought the suit in the Court below. At the first instance, when they filed the written statement, they did not plead specifically about their tracing of title. Afterwards taking the plea of formal amendment of plaint, they field additional written statement by tracing their title over a portion of the suit property, but when their additional written statement was rejected they kept mum without agitating before the higher Court about the rejection of their additional written statement. Then, during the course of trial, defendant Nos. 13 and 14 did not examine themselves. No reasons have been assigned as to why they fought shy of coming to the dock to support their own case. Even they failed to prove their title deed or exhibited the same before the Court below. It appears that the defendant Nos. 13 and 14 only casually fought the suit as I have mentioned earlier.
17. On going through the impugned judgment, I do not find any flow in it either legally on factually. The individual witnesses on both the sides had been examined and scrutinized by the Court below and then formed the opinion. On independent scrutiny of the evidence also, I come to the same finding as arrived at by the Court below. The defendant Nos. 13 and 14 had failed miserably either to prove their title over a part of the suit property or their title by adverse possession as discussed above.
18. Hence, I do not find any force in this appeal, which is dismissed with costs throughout.