JUDGMENT
Kanhaiya Singh, J.
1. This is a Second Appeal by the Plaintiffs, and the question for consideration is whether the respondents have acquired tenancy rights in the disputed lands by prescription.
2. The disputed lands admittedly belonged to Kesho Jha and are situate in village Ramudih Bariarpur. He had lands also in two other villages, namely, Rohini and Rupsagar. He died about 25 years ago leaving him surviving his son Bhubaneshwar Jha and his widow Jamuna Debya. Bhubaneshwar also died soon thereafter leaving behind him three daughters and his widow Sansar Debya. In the Reyisional Survey and Settlement the villages Rohini and Rupsagar were recorded in the name of Sansar Debya, while the village Ramudih Bariarpur, where the disputed lands lie, was recorded in the name of” Jamuna Debya. Sansar Debya died in 1941 and Jamuna Debya died in 1942. The present action was commenced by the daughters of Bhubaneshwar on 13-2-1948.
They claimed the disputed properties by inheritance. They alleged that on the death of Bhubaneshwar his widow Sansar Debya was in possession of the entire family properties situate in the three villages aforesaid, that the name of Jamuna Debya was recorded in respect of the village Ramudih Bariarpur by mistake and that notwithstanding this wrong entry the possession remained with Sansar Debya. Their further case was that the disputed lands were settled with the defendants on bhaoli batai in the year 1942-43 for one year and this settlement was renewed from year to year until 1945; In 1945 they wanted to cultivate the lands khas through their servants.
But it is alleged, the defendants removed the crops of the disputed lands in November 1945, which culminated in a criminal case against the defendants who were eventually acquitted. The plaintiffs sought the eviction of the defendants on the ground that since after the decision of the criminal case they were trespassers and the plain-tiffs were entitled to enter upon the lands as the defendants had no valid title to retain possession. They also claimed mesne profits for one year prior to the institution of the suit.
3. The defendants admitted that they were holding the lands as tenants but denied that the tenancy was bhaoli batai and alleged that they were paying cash rents to the plaintiffs. They further alleged that they were in possession of the disputed lands since after the Revisional Settlement. Their alternative defence was that they had acquired title to the disputed lands by adverse possession for upwards of twelve years.
4. The learned Subordinate Judge found that the defendants were holding the lands as bataidars, and their possession as bataidars extended beyond twelve years prior to the institution of the suit. He, however, negatived the defence of acquisition of title by adverse possession, because, in his opinion, the defendants were possessing the lands not in exercise of any independent right but as agents of the plaintiffs and their predecessors in interest. He accordingly gave the plaintiffs a decree for possession and also for mesne profits.
5. The defendants took an appeal to the District Judge. In appeal before the District Judge the correctness of the finding of the learned Subordinate Judge that the defendants are in possession of the lands as bataidars for more than twelve years before the institution of the suit was not questioned, and the learned District Judge accepted that finding as correct. The only question canvassed before the District Judge was whether the defendants had acquired title by adverse possession. The learned District Judge differed from the learned Subordinate Judge and held that the defendants had acquired title to the disputed lands by adverse possession. The admitted case of the parties is that the disputed lands are raiyati lands.
In the opinion of the learned District Judge, the possession of the defendants was adverse to the owners of the disputed lands, since the inception of the tenancy, as the batai settlement with the defendants was invalid by reason of section 27 (1) of the Santal Parganas Settlement Regulation (Regulation III of 1872) and, therefore, since their adverse possession continued for more than the statutory period, their title to the disputed lands had become perfect. He accordingly set aside the judgment and decree of the lower Court and dismissed the suit with costs throughout. Now, the plaintiffs have come up in Second Appeal.
6. Mr. P.R. Das, appearing on behalf of the appellants contended that the suit was governed by Article 141 of the Limitation Act and that as on the date of the institution of the suit twelve years had not run from 1942, the year of the death of Jamuna Debya the plaintiffs’ claim was not barred. He relied on the decision of the Privy Council in the case of Jaggo Bai v. Utsava Lal, 56 Ind App 267: (AIR 1929 PC 166) (A). I think, the contention of Mr. Das is well founded and must be accepted.
7. It will be recalled that in the Revisional Survey the disputed lands had been recorded as the raiyati lands of Jamuna Debya. She died in 1942. The present suit was instituted on 13-2-1948. Therefore, if Article 141 applied, the suit was not barred by time. This Article provides a period of twelve years for possession by a Hindu entitled to possession of immoveable property on the death of a Hindu female from the date of the female concerned. In Jaggo Bai’s case their Lordships of the Privy Council observed as follows :
“In their Lordships’ judgment where there has been no decree against the widow or other act in the law in the widow’s lifetime depriving the reversionary heir of the right to possession on the widow’s death, the heir is entitled, after the widow’s death, to rely upon Article 141 for the purpose of the determination of the question whether the title is barred by lapse of time. To hold otherwise would in their Lordships’ opinion, in effect, compel the Court in determining a question within the scope of the article to ignore the express words of the article.”
Unquestionably, therefore, Article 141 applied. He contended, however, that Jamuna Debya held the disputed lands as an absolute owner and not as a limited owner, and therefore this case was outside the operation of the said Article. In support of his contention, he relied upon Section 25 of the Santal Parganas Settlement Regulation. Sub-section (1) of Section 25 of the Regulation provides that after a period of six months from the date of the publication of the record of rights of any village, such record shall be conclusive proof of the rights and customs therein recorded, other than the rights mentioned in Section 25A. Section 25A is not relevant to the present enquiry. Sub-section (3) is important, and it runs as follows :
“When a record of rights has become final, or any objection to any entry in a record of rights has been finally disposed of in the Settlement Courts, and when all final decisions and orders, including such as may have been passed on revision as provided in Sub-section (2), have been correctly embodied therein, such record shall not, until a fresh settlement is made or a new table of rates and rent-rolls are prepared, be re-opened without the previous sanction of the Lieutenant-Governor. But in case of the discovery of material error, it shall be lawful for the Lieutenant-Governor to direct that the record of any village shall be revised.”
8. The submission of Mr. Sinha is that the Revisional record of rights was prepared in 1931, and therefore, the said record now constitutes conclusive proof that Jamuna Debya held the lands in her own independent right, and such record cannot be re-opened until a fresh settlement is made or a new table of rates and rent-rolls are prepared. He urged that Jamuna Debya must, therefore, be regarded as an absolute owner and the defendants had acquired an indefeasible right by prescription, and the suit was barred under Article 144. I do not think that the construction sought to be put upon Section 25 of the Regulation is correct. On a proper construction, the true scope and effect of Section 25 is that the rights and customs incident to the land as recorded in the record of rights shall be conclusive and shall not be called in question until a fresh settlement takes place.
While the record of rights must be regarded as conclusive to show the character of the land, it does not purport to determine the legal capacity in which the person for the time being in possession holds the land, whether as a limited owner or as an absolute owner. It is purely a question of fact depending upon the circumstances of each case. After all, the entry will be the same even if the holder is a limited owner. Assume that Jamuna Debya holds these lands as a limited owner, as the mother of Bhubaneshwar Jha. What in that case will be the nature of the record of rights under Section 25 of the Regulation? There is no doubt that the lands would still be recorded as the raiyati lands of Jamuna Detaya in the Survey record of rights. A raiyat may be holding the raiyati land either as an absolute owner or as a limited owner.
When the entire scheme of Regulation II of 1872 is considered, it will appear that the question of the title of the holder of the land is outside its scope. Sections 12 to 24 of the Regulation provide for the preparation of the record of rights, and the main object of the record of lights is to settle the rights of the zamindars and the raiyats in particular lands and not to decide whether the zamindar or the raiyat held the raiyati land or the proprietary interest in a limited capacity or in absolute right. This position has been made perfectly clear by Mr. J.F. Gantzer in his Final Report on the Revision Survey and Settlement Operations in the district of Santal- Parganas, 1922-35.
The final publication of the record of rights in respect of the three villages of Kasho Jha in this Revision Survey was made in 1931. The last two sub-paragraphs of paragraph 46 at page 22 of his Report run as follows :
“As regards widows, the entries have had per force to be even less uniform. There have been not a few cases in which no objection has been raised to the recording of the widow in her own right, and in such cases she has, been described as wife of so and so. As in the case of Hindu widows, this entry is intended to indicate that she has inherited the property from her late husband, and that when she dies it will revert to those male relations who would ordinarily have inherited it at once under Santal Law. In other cases the widow has like the daughter been recorded only in the remarks column as a Khorposhdar for certain plots sufficient to maintain her until her death.
To sum up it may be said that where a Santal woman has been recorded as wife of so and so, she holds a widow’s right as if she were a Hindu widow. Where a Santal woman has been recorded as daughter of so and so, she may be taken to have full rights of inheritance somewhat in the manner of a woman inheriting stridhan property under the Hindu Law. The question of succession in such cases is still somewhat in doubt as the system is so new, but there seems little doubt that if she dies issueless, Santal sentiment would prefer that the property should revert to her nearest male relatives.”
The Report makes it perfectly plain that the raiyati lands recorded in the name of a widow do not constitute her absolute properties; rather, the indication is that she has inherited them from her late husband. This affords a clue to the construction of Section 25 of the Regulation. The statutory conclusiveness provided therein attaches to the character of the land and not to the nature of the title of the female recorded as a raiyat. Therefore, the contention of Mr. Sinha that Jamuna Debya must be regarded as an absolute owner of the disputed lands by virtue or Section 25 of the Regulation cannot be accepted. In my opinion, the record-of-rights is not conclusive on the point whether Jamuna Debya was an absolute owner or a limited owner. The question then arises what was the nature of her interest in the disputed lands?
9. The admitted case of the parties is that the disputed lands belonged to Kasho Jha and remained in his possession until his death. Jamuna Debya was recorded in the record-of-rights as the widow of Kesho Jha. Even this entry was made against her wishes. She wanted Sansar Debya to be recorded. Be that as it may, there is no plea and no evidence either that the disputed lands belonged to her absolutely. As pointed out above, Section 25 of the Regulation does not conclude the matter. Therefore, Jamuna Debya cannot be regarded as an absolute owner of the disputed lands. That being so, on the authority of the aforesaid Privy Council decision, Article 141 of the Limitation Act applies, with the result that the suit-is not subject to a bar of time.
Mr. Sinha, however, contended that this plea was not available to the plaintiffs, because their case was that they inherited the lands from their maternal grand-father and not from Jamuna Debya, ana therefore, the plaintiffs should not be permitted to take up a position contrary to what was made out in the plaint. He relied upon the cases of Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) (B) and Rajendra Prasad Singh v. Governor General in Council, (S) AIR 1955 Pat 138 (C). In the case of Siddik Mahomed Shall their Lordships of the Privy Council laid down that where a claim had never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. The decision in the case of Rajendra Prasad Singh is to the same effect.
It is beyond controversy that evidence at variance with the pleadings is not permissible and, if adduced, cannot be looked into to sustain a claim which was never put forward in the pleadings. The present case, however, is distinguishable. The determination of this question rests upon the averments in the pleadings and admission of the parties. It was alleged in the plaint, and not controverted by the defendants, that the disputed lands belonged to Kesho Jha and that on his death his son Bhubaneshwar Jha inherited the entire family properties by survivorship. It was nowhere the case of the defendants that Jamuna Debya was absolutely entitled to the disputed lands. These facts necessarily lead to the conclusion that Jamuna Debya must have held these lands as a limited owner.
There is further no dispute that the plaintiffs will be entitled to inherit the properties if Jamuna Debya held these lands as a limited owner. This contention of Mr. Sinha is also not valid. In my opinion. Jamuna Debya held the disputed lands as a limited owner, and the present suit for possession having been instituted by the plaintiffs within twelve years of the death of Jamuna Debya is well within time.
10. I would, therefore, allow this appeal with costs, discharge the decree of the District Judge and restore the decree of the Subordinate Judge. The appellants win be entitled to the costs of the lower appellate Court also.
Rai, J.
11. I agree.