JUDGMENT
Narayan Roy, J.
1. I have heard Counsel for the parties.
2. The defendants are the appellants and this appeal arises out of the judgment and decree dated 8.8.1979 and 18.8.1979 passed by the Addl. Subordinate Judge, Cumla, in Title Suit No. 105 of 1977 decreeing the suit for declaration of title.
3. Briefly stated the case of the plaintiffs is that the suit lands were recorded in the names of Sangram and Chango Mundari, sons of Gajua Mundari, Dackua son of Sangram Mundari, Mangra Mundari son of Sanika Mundari and Sanika Mundari, Johan Mundari under Khata No. 75 in the cadasteral survey of records of rights and in the Revisional survey, the same lands have been recorded under Khata No. 165 in the names of Somra Muda son of Dackua Munda, the ancestor of the plaintiffs as Saikadar but the recorded tenant was holding the suit lands in his own right, title and interest and never paid saikapaddy to anyone. The recorded tenant died long ago leaving behind the plaintiffs as the heirs and successors, who came in possession of the suit lands in their own right, title and interest and the plaintiffs are coming in peaceful possession of the suit lands and are cultivating the same without any obstruction or hindrance from any side. It is the further case of the plaintiffs that they are also depriving their rights upon the suit lands by remaining in possession for more than the statutory period of limitation to the full knowledge of all concerned. It is the further case of the plaintiffs that the defendants taking advantage of entry in the R.S. record of rights began to lay false claim over the suit lands and are trying to forcibly oust them of the same and this necessitated for bringing the suit.
4. Defendants Mahabir Prasad and Sachhidanand Verma had contested the suit by filing their separate written statements but in sum and substance the contents of both the written statements are one and the same. The defendants have taken a plea in their written statements that the suit is barred by law of limitation and adverse possession and the same is also barred by principles of res judicata as an area of 20 Decimals out of the suit land was acquired by the State of Bihar for construction of Railway line in Land Acquisition Case No. 397/133 of 1964/66, wherein the plaintiffs predecessor-in-interest had claimed the compensation amount and the matter was referred to the District Judge under Section 30 of the Land Acquisition Act and the defendants’ father was held to be entitled to receive the compensation amount with respect to the acquired land, which were acquired by Award dated 23.4.1966. As per the written statements, the further case of the defendants is that the Saikadar was paying Saikapaddy to the predecessor-in-interest of the defendants and the defendants’ predecessor-in-interest were always realising the same from the persons named in Khata No. 165 and when they failed to pay Saikapaddy the defendants’ predecessor-in-interest were compelled to file Rent Suit Case No. 375 R-8 of 1940-41, which was accordingly, decreed by the Rent Suit Deputy Collector, Gumla and the same was confirmed in appeal being Rent Appeal No. 14/1941 by the then Judicial Commissioner, Ranchi and the order was upheld to the stage of the High Court. For non-payment of decretal amount to the defendant’s predecessor-in-interest, the Execution Case No. 68 RG of 1946-47 was filed and on the failure of payment of decretal dues the lands were auction-sold and the defendants predecessors-in-interest purchased the Saika night of the plaintiffs ancestors and got delivery of possession of the lands in question through the Court as far back on 16.12,1948 and they are still in possession having good and indefeasible title over the same and they are paying rent to the State of Bihar and prior to vesting to the ex-landlord and the regular rent receipts were granted. It is the further case of the defendants that prior to the auction purchase the plaintiff’s ancestors used to execute Kabuliat with respect to the lands and their possession in favour of the defendants predecessors-in-interest, and as such, they were always in permissive-possession under the defendants’ predecessors-in-interest. In has further been asserted by the defendants that in or about 1946 Lenga Munda had very clearly and categorically executed a document in favour of the defendants’ father late Jagdishwar Prasad stating therein that he had not interest over the lands in suit as he had no claim over the same.
5. On the basis of the pleadings of the parties, the learned Court below framed the following issues:
1. Have the plaintiffs got valid cause of action?
2. Is the suit maintainable in its present form?
3. Is the suit barred by limitation, adverse possession and under Section 34 of the Specific Relief Act and also barred by principles of Res judicata?
4. Is the suit lands under valued and the Court fee properly paid?
5. Are the plaintiffs alongwith their ancestors coming in possession of the suit lands in their own right, title and interest as their Bhuinhari lands inspite of the entries in the Survey record of rights as Adhbatai or Saikadar?
6. Have the defendants and their ancestors ever possessed the suit lands in their own right, title and interest by alleged auction purchase in Execution Case No. 68 RG of 1946-47?
7. Are the plaintiffs entitled to the decree of his title over the suit lands?
8. To what other relief, if any, the plaintiffs are entitled?
6. The learned trial Court on the basis of the evidence and pleadings of the parties held that the plaintiffs have proved their case and it must be held that they are coming in continuous cultivating possession without any interruption and they have acquired their title by adverse possession inspite of the entries in the record of right and auction purchase and paper transaction of delivery of possession. The learned trial Court further held that the suit was not barred under the provisions of Section 34 of the Specific Relief Act, as the plaintiffs sought declaration of their title on the ground of adverse possession and they proved their continuous cultivating possession entitling themselves to the decree for declaration of title. The learned Court below further held that the suit is not barred by principals of res judicata for the lands, which have been found to be in cultivating possession of the plaintiffs.
7. Mr. N.K. Prasad, learned Counsel appearing on behalf of the appellants submitted that the learned trial Court has wholly misconstrued the provisions of law and has recorded its findings contrary to the legal and factual aspect of the matter. Mr. N.K. Prasad, learned Counsel further submitted that by virtue of the Award dated 23.4.1966 passed in Land Acquisition Case No. 397/133 of 1964/66 in favour of the appellants, the question of ownership of the land has already been decided and the learned trial Court on this ground could have held that the suit was barred by res judicata. Learned Counsel further submitted that once it is held that the suit is barred by res judicata, the whole suit has to fail and the learned trial Court without noticing the provisions of Section 11 of the Civil Procedure Code had decreed the suit. Learned Counsel further submitted that since the suit in question was brought by the plaintiffs for mere declaration of their title, the suit itself was barred under Section 34 of the Specific Relief Act. Learned Counsel further submitted that since the. possession of the plaintiffs was permissive, the question of adverse possession was not at all available to the plaintiffs even if they have proved their case that they are in continuous cultivating possession of the suit land for more than 12 years openly known to the parties.
8. The learned Counsel appearing on behalf of the respondents on the other hand submitted that the plaintiffs have proved their case of possession over the land in question and they have also proved the claim of adverse possession and, therefore, the findings arrived at by the learned trial Court cannot be said to be contrary to the evidence and pleadings of the parties nor the same can be said to be contrary to law, Learned Counsel further submitted that since the plaintiffs have proved their case of adverse possession on the land in question, the question of res judicata shall not apply against them even if the part of the land was acquired under the proceeding of the Land Acquisition Act. Learned Counsel further submitted that the suit in question cannot be said to be barred under Section 34 of the Specific Relief Act and the learned Court in its discretion has rightly held that the suit is not barred by Section 34 of the Specific Relief Act.
9. The learned trial Court has taken into consideration the evidence of both the parties and also the documents filed by them and while answering issue Nos. 5 and 6 has come to a conclusion that the plaintiffs have proved their case that they are coming in continuous cultivating possession of the land in question and thus, they have acquired their title by adverse possession inspite of entries in the record of right and auction purchase and paper transaction of delivery of possession.
101. P.W. 1 has stated in his evidence clearly that due to threat of dispossession the suit in question was filed. It is true that most of the plaintiff’s witnesses have stated in their evidence that the plaintiffs are in cultivating possession of the land in question but at the same time the learned trial Court has not tested the case of the plaintiffs in the light of the evidence and documents produced by the defendants.
11. D.W. 1 Mahabir Prasad is the defendant No. 1 himself. His evidence is suggestive of the fact that the predecessors-in-interest of the plaintiffs were the Saikadars under the predecessors-in-interest of the defendants and they were paying Saikapaddy to them so far as Khata No. 165 is concerned and when they had failed to pay Saikapaddy, the predecessors-in-interest of the defendants had filed a Rent Suit Case No. 375 R-8 of 1940-41, which was, accordingly, decreed and the order passed by the Rent Suit Deputy Collector was affirmed by the Judicial Commissioner, Ranchi, and order was upheld upto the High Court, and for non-payment of decretal amount Execution Case No. 68 RG of 1946-47 was filed and the lands were auction-sold and the defendants’ predecessors-in-interest purchased Saika-right of the plaintiffs predecessors-in-interest and got delivery of possession of the lands in question through the Court as for back on 16.12.1948 and, thereafter, they came to possession of the land in question and are paying rents to the State of Bihar.
12. Exhibits J, K/1, L, M are the documents relating to the rents suit brought by the defendants and the orders passed by the Judicial Commissioner, High Court and the order passed in Execution Case. Exts. I and I/1 are the documents showing the delivery of possession of the lands in question in favour of the defendants.
13. If the evidence of D.W. 1 is read at the face of the Exhibits referred to above, it is manifestly clear that once upon a time the land in question came in possession of the defendants for failure of payment of Saikapaddy by the predecessor-in-interest of the plaintiffs. The learned trial Court in view of the evidence on record could not have held that since actual physical possession of the land in question was not delivered to the defendants, the defendants cannot be said to be in possession of the land in question and the plaintiffs were acquiring the land by continuous cultivating possession. Secondly the learned trial Court having seen the evidence on record that part of the land out of the suit lands was acquired by the State of Bihar for construction of the Railway lines in Land Acquisition Case No. 397/133 of 1964/66 where Award was prepared in the name of the father of the defendants and the same was also affirmed by the learned District Judge under Section 30 of the Land Acquisition Act rejecting the claim of the predecessors-in-interest of the plaintiffs it was not justified in holding that the suit was not barred by res judicata as part of the land was still in cultivating possession of the plaintiffs. The finding of the learned trial Court, in my opinion, is wholly misconceived and it must be held that since part of the land was subject matter of earlier litigation and when the father of the defendants was held entitled for compensation, the present suit was barred by res judicata.
14. The primary test of res judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in two cases, i.e., the principle ingrafted on the general rule of res judicata by Section 11 of the C.P.C. therefore, even if, the property involved in the previous suit was different that cannot be an impediment to invoke the principle of res judicata. It is not in dispute that the properties involved in both the cases are common and the question of common title is involved, therefore, the decisions of the authorities under the Land Acquisition Act, which was affirmed even to the stage of Section 30 of the Land Acquisition Act by the learned District Judge must operate as res judicata in the present suit against the plaintiffs and necessarily it must be held there that the whole suit shall fail on this score alone. In this connection reference can be made to the case of Smt. Raj Laxmi Dasi v. Banamali Sen .
15. From the documents and evidence of the parties it appears to me that the land in question was being cultivated by the predecessors-in-interest of the plaintiffs in the capacity of Saikadars. The documents filed by the defendants as noticed above go to show the right of the predecessors-in-interest of the plaintiffs as Saikadars and for non-payment of Saikaddy the land in question was auction-purchased pursuant to the decision passed in the Rent Suit Case referred to above. The possession of the plaintiffs over the suit land, therefore, must be held to be permissive possession and the plea taken by the plaintiffs that they acquired the title over the land in question by virtue of adverse possession is not sustainable in law. Besides this the plaintiffs have not been able to show at the face of Exts. I I/1 that they are possessing the land in question adequately in continuity to perfect title of adverse possession under Article 65 of the Limitation Act. it is well settled that in order to perfect a title by adverse possession two ingredients, namely, the physical possession and to exclude the adversory from possession are in separable. The factum of physical possession must be declared incontinuity, publicity and extent and the question of ouster is a pure question of fact. According to para-9 of the plaint, the plaintiffs have brought the suit in question on the plea that they have the threat of ouster by virtue of entry made in the R.S. record of right. The plea taken by the plaintiffs, therefore, that there is a threat of ouster is a pure question of fact and they have not been able to prove in what way the defendants were threatening the plaintiffs to oust them from the suit land.
16. For the reasons and in view of the finding aforesaid that the plaintiffs are in permissive possession of the land in question, their claim that they have perfect title over the land in question by adverse possession is negated.
17. I have already noticed above that the plaintiffs filed the suit for mere declaration of their title and in view of the pleadings and evidence of the parties the suit in present form must be held to be barred under Section 34 of the Specific Relief Act as the plaintiffs have taken a specific plea that they have threat of ouster at the hands of the defendants by virtue of the entry made in the R.S. record of right and they have not sought any relief for declaration that the entries made in the R.S. record of rights are wrong, no suit for declaration of title alone was maintainable as the same being barred under Section 34 of the Specific Relief Act.
18. Having heard Counsel for the parties and in view of the reasonings and findings aforesaid, the findings arrived at by the learned trial Court are not at all sustainable and are liable to be set aside.
19. In the result, I allow this appeal and set aside the impugned judgment and decree passed by the learned Court below and the suit of the plaintiffs is dismissed but without costs.
