JUDGMENT
Mahapatra, J.
1. This appeal is by defendant No. 1, South Bihar Sugar Mills Ltd., in an action for their ejectment from the lands described in the plaint. The plaintiffs, who were eleven in number, instituted a suit at Arrah against six sets of defendants, of whom the appellants were the first set. In Schedule 4 appended to their plaint, they gave description of 117 bighas 7 kathas of land in mauza Atini, pergana Bhojpur, thana No. 422 in the district of Shahabad and claimed that to be their properly, as settlees from defendant No. 7, Pandita Chanda Bai, who was made the defendant fourth party in suit. That land having been declared in a proceeding under Section 145 of the Code of Criminal Procedure, to be in the possession of the defendants first and second parties, the plaintiffs claimed to recover possession of the same with mesne profits. They also asked for payment of Rs. 10,898-15-0 from those defendants as the price of their crops which were forcibly taken away by them. Alternatively, the plaintiffs asked for a money decree as staled in Schedule La against defendants fourth, fifth and sixth parties, or any of them that may be found liable. Their case, in brief, was that the proprietorship of village Atini bearing tauzi No. 1553/8 and of village Ranbirpur in tauzi No. 1258/8 was with defendants 7 to 20. In 1927, the proprietors reclaimed some lands in those two villages and established an agricultural farm, under the name Jineshwar Garh Farm. In a Partition Suit No. 1 of 1941 between the proprietors, in which the decree was passed on the basis of an award, the village Atini was given to Pandita Chanda Bai, defendant No. 7, who came in exclusive possession of the same. The plaintiffs took from her some lands in that village for cultivation in 1350, 1351 and 1352 Fasli. In all, it was about 117 bighas. On the 26th of June, 1946, Pandita Chanda Bai, defendant No. 7, settled those lands permanently with the plaintiffs and executed and registered an instrument in that respect. The Raja of Surajpura, defendant second party, wanted to take that settlement but, being unsuccessful, threatened the plaintiffs with dire consequences. The plaintiffs paid Rs. 17,550 as premium to defendant No. 7, and after taking settlement, spent large sums of money over reclamation and clearance of jungle and levelling the land. They were, however, obstructed by the south Bihar Sugar Mills and their employees and ultimately a proceeding under Section 145 of the Code of Criminal Procedure was started between the parties which terminated in favour of the defendant first party and against the plaintiffs.
2. Pandita Chanda Bai, defendant No. 7, supported the plaintiffs by filing her written statement. On behalf of the minor defendants 13 to 15 and 17 to 19, a written statement was filed, by which the plaintiffs’ averments were denied. The real contest was given by defendant No. 1, the Mill, which filed an elaborate written statement, asserting that only defendants 8 and 9 were the proprietors of the villages Atini and Ranbirpur and they established the Jineshwar Garh Farm consisting of the lands in those two villages including the suit lands. The Board of Directors of the Mill resolved on the 25th January, 1938, to acquire that farm land by perpetual lease. The proprietors sold that farm to defendant No. 1 for Rs. 1,12,000 and leased that land permanently to the Mill, at an annual rent of rupee one per bigha. On the 28th January, 1938, they paid Rs. 1,12,000 to the proprietors. They have continued in possession all through. They asserted that there was no valid settlement of the lands with the plaintiffs nor were they in possession of them. The partition suit and decree were only fraudulent measures to protect the properties from the creditors and tax liabilities. They also raised the bar of limitation against the suit. With these pleadings, the parties went to trial.
3. Two of the important issues (Issues Nos. 4 and 6) were:
“4. Had Pandita Chanda Bai, defendant No. 7 any right to grant pattas in respect of the lands in dispute to the plaintiffs?”
“6. Are the lands in dispute outside the ambits of Janeshwargarh Farm as alleged by the plaintiffs?”
4. The trial Court decreed the plaintiffs’ suit, declaring that they had title, and that they were entitled to recover possession of the same by evicting defendant No. 1 from them. The cost of the suit was decreed against the contesting defendants. The plaintiffs were held entitled to mesne profits from them from the 26th of June, 1946, till the date of recovery of possession, the amount of which is to be determined in a subsequent proceeding. Plaintiffs’ claim for damages and compensation was negatived. The Court found that Pandita Chanda Bai, defendant No. 7, had every right to grant lease to the plaintiffs for the suit lands, which was not included in the Jineshwar Garh Farm. It also held that the Mill, defendant No. 1, was in possession over the disputed land since 22nd of December 1938, but the suit was not barred by limitation as it was brought within 12 years therefrom.
5. One of the two main points for consideration in this appeal is, if the suit lands–117 bighas and odd in village Atini, details of which were given in the plaint, were part of Jineshwar Garh Farm, before the defendant No. 1, the South Bihar Sugar Mills (to be referred hereafter as the Mill for the sake of convenience) came into possession, on a permanent settlement by the proprietors of the villages Atini and Ranbirpur. Appellant’s learned counsel, in this connection, also commented on the trial court’s failure to find that possession of the Mill was with effect from January, 1938, when the Board of Directors of the Mill passed a resolution to acquire, by perpetual lease, the Jineshwar Garh Farm measuring, about 1200 bighas from the estate of N. and C. Kumar (Nirmal Kumar Jain and Chakreshwar Kumar Jain) on an annual rental of Re. 1 per bigha, on payment of Rs. 1,12,000 (Ext. F.), and that money was paid on the 28th of January, 1938. Ext. G, the transfer voucher, and corresponding credit and debit entries in the bank accounts (Exts. H and H-1) bear out this payment. The resolution passed on the 25th January, 1938, was, however, confirmed in the next meeting of the Board on the 22nd of December, 1938 (Ext. F-1). The trial Court thought that until the confirmation of the resolution, the Mill could not have taken possession of the Jineshwar Garh Farm.
From the oral evidence of D. W. 6, Mukti Nath Mishra, who was an assistant accountant of the Mill, it appears that on both the occasions, when the resolution was passed and confirmed, the two Jain brothers, Nirmal Kumar and Chakreshwar Kumar, were present as members of the Board of Directors. Exts C-12 to C-44, cash vouchers (Exts. C series) show that the Mill incurred expenses in connection with the Jineshwar Garh Farm between the 3rd October and 8th November, 1938. Entries in the ledger book for the year 1937-38 (Exts Ml to 1-23) also show posting of expenses on account of the farm during the period January to October 1938. All these things were before the confirmation of the resolution on the 22nd of December, 1938. The trial court was in error in thinking that the Mill could not have taken possession until the confirmation of the resolution of the 25th of January 1938. There is ample evidence on record to justify the trial Judge’s finding that the mill came into possession of the farm and that finding was not assailed by the respondents. Confirmation of the proceedings only mean’s that recording of the resolution of the previous meeting was correctly done. I would, therefore, agree with the appellant’s contention that the trial Court’s finding about the. Mills’ possession should have been with effect from January 1938.
The difference between January and December 1938 has some bearing on the question of limitation. If the Mill has been in possession since the 25th January 1938 in assertion of their right, then by the time the plaint in the present suit was registered on the 1st of February, 1950, they would acquire a tenant’s title, even by prescription, against the landlords or persons claiming through them, even if the settlement in favour of the Mill is not accepted. But that question really involves the other and more important point, that is, whether the suit land was included in the farm and came in possession of the Mill along with the farm in January 1938.
6. Admittedly, the disputed land is situated in Chakia Badhar which is the name of the block. The resolution of the Board of Directors of the Mill, as passed on the 25th January 1938 (Ext. F), only mentioned Jineshwar Garh Farm measuring about 1200 bighas. Neither boundaries nor survey plot numbers were given. Evidence on appellant’s side was that, actually, the Mill took possession of about 1500 bighas, in support of which documents showing payment of rent, at the rate of one rupee per bigha for 1500 and odd bighas, were proved. Assuming that 1500 bighas really came into their possession, they would not necessarily include the suit lands. The farm consisted of lands both in village Atini and Ranbirpur. But how much of the lands of those two villages were included in the farm, at the time when the Mill took it, have not been brought out in evidence in any detail, at any place, either oral or documentary. Appellant referred to Exts M series (Exts. M-2 and M-18) registered deeds of exchange by which Nirmal Kumar Jain and Chakreshwar Kumar Jain (to be referred hereafter as the Jain brothers for convenience) obtained certain lands in village Atini on the 7th of September 1936, but there is little evidence to show that those lands became a part of Jineshwar Garh Farm.
Learned Counsel argued that that was so, in all probability, because the Jain brothers had, already hit upon the idea of establishing the agricultural farm and had started reclamation of waste lands. We cannot go on mere probabilities. No papers of the proprietors, prior to the transfer of the farm to the Mill, were sought to be proved, to show that the farm consisted of those lands also. Secondly, the absence of any details of lands in any paper at the time of settlement with the Mill, increases the difficulty in accepting the appellant’s contention. Learned Counsel, however, referred to Exts. T series–daily farm reports of the Mill and pointed out that expenses in respect of the farm were entered therein and those expenses referred in several cases, to lands in ‘Chakia’, which the name of the block in which the suit lands are situate. Those expenses are very nominal in value, in many cases, even a few annas. Learned Counsel frankly admitted that the extent of land in Chakia Badhar in respect of which those expenses were incurred must have been very very small, but his argument was, all the same the expenses were for some lands in Chakia Badhar.
According to D. W. 4, Chakia Badhar consists of 150 bighas of land. Its extent, as stated by P. W. 18, is between 250 and 255 bighas. Taking it at the defendant’s figure at 150 bighas, there would be still more than 30 bighas left in that block, besides the suit lands of 117 bighas. One cannot be sure that the small bits of land in Chakia Badhar, referred to in the Mills’ daily farm reports, did not relate to any part of those 30 bighas. Learned Counsel referred to the evidence of three witnesses’ on the defendant’s side D. Ws. 2, 4, and 14, who said that the Mill had no land other than the suit land in Chakia Badhar. Such oral assertions have little value. It is unthinkable that the Mill would have no papers to show the details of the land, which they took by settlement and which they have been in possession for over 12 years. Their witnesses admitted the existence of documents to reveal such details but they have not been produced.
The plaintiffs examined a large number of witnesses to assert that Jineshwar Garh Farm lands were in three blocks and they were all fenced. The suit land is outside the fence. The elaborate discussion of evidence, on this question, by the trial Court under issue No. 6, could not be met by learned Counsel for the appellant, except emphasising upon the probabilities of inclusion of Chakia Badhar lands in the farm, at the time of its settlement with the Mill. He said that, out of the suit lands, 37 bighas were sir lands and 80 bighas were acquired by the Jain brothers, by exchange or purchase. If at least the acquired 80 bighas, which must have been cultivated lands, were included in the farm and came to the Mill, then the expenses in connection with cultivation of those lands in Chakia Badhar, could not be as meagre as mentioned in Exts. T series, the daily farm reports. It is, therefore, difficult to upset the finding of the trial Court that the suit land was not included in the farm land that was settled with the Mill.
7. At the time of institution of the suit, the Mill was in possession of the land in dispute. In a proceeding under Section 145 of the Code of Criminal Procedure which ended on the 3rd of June, 1948, their possession was found and they have continued that possession. Plaintiff can succeed in their action of ejectment of the defendant, if they can prove their title. On the finding of the defendant’s possession over the suit lands, it has been proved to be for over 12 years, so as to extinguish the defendant No. 7’s or/and plaintiffs’ title, if any.
8. Apart from that, plaintiffs have further, difficulty about their lessor’s title. Their case is that they had taken annual settlement of different portions of the suit land from defendant No. 7, Pandita Chanda Bai, in the years 1351, 1352 and 1353 Fs. They proved rent receipts in support of their shikmi settlement but they were rejected by the trial Court, as not genuine. That part of the plaintiffs’ case was negatived. The oral evidence in support of that was disbelieved. Plaintiffs, however, concentrated upon their claim, during the argument before us, on the registered lease executed in their favour on the 26th of June, 1946, (Ext. 5). This document was executed by Chakreshwar Kumar Jain, as manager and on behalf of Pandita Chanda Bai. Plaintiffs assert that she had a good title and had the right to settle the land permanently with the plaintiffs. Even if her title was not absolute, her lease in their favour would be valid till her lifetime. The lady, defendant No. 7, supported the plaintiffs’ case in her written statement hut she was not examined on their behalf to pledge her oath, either about her possession or title. Learned counsel contended that the lessees had made bona fide enquiries about the lessor’s title with reference to Ext. 9, the entry in register D where the entry in respect of mauza Atini was:
“Pandita Chanda Bai I/O and through
manager Babu Chakreshwar Kumar Jain . . . .
Proprietor,”
The lessees, he argued, were justified in believing that she was a real, or at least an ostensible owner. One of the proprietors Chakreshwar Kumar Jain, was virtually a party to the registered lease inasmuch as he executed it on behalf of the lady. In that sense it was argued there was acquiescence by the proprietors, of the ostensible ownership at least, of the lady and it was so held out to the outside world including the plaintiffs. This argument has more than one infirmity.
In register D, the entry in column No. 9 gives a reference to an award dated the 11th October 1940, meaning thereby, that the entry was made in the name of Pandita Chanda Bai in accordance with that award. Any bona fide enquirer was thus set on a legitimate enquiry about that award. On the 2nd of January, 1941, Title Suit No. 1 of 1941 in the court of the Subordinate Judge at Arrah was filed, asking for a decree to be made on the basis of the award dated the 11th of October, 1940, and on the 8th of January, 1941, the decree was passed, by the court, in terms of that award. It has been marked as Ext. 2, in which the whole award verbatim was quoted. Parties to that decree were Subodh Kumar Jain, son of Nirmal Kumar Jain, plaintiff and Nirmal Kumar Jain, Chakreshwar Kumar Jain, other sons of Nirmal Kumar and sons of Chakreshwar Kumar, Anupmala Devi widow of Deva Kumar Jain (father of Nirmal Kumar and Chakreshwar Kumar), Shanti Devi, wife of Nirmal Kumar Jain, Rajeshwari Devi, wife of Chakreshwar Kumar Jain and Pandita Chanda Bai, widow of Dharam Kumar Jain (brother of Deva Kumar Jain deceased), defendants. They were also parties before the arbitrator who passed the award.
It should be mentioned here that the arbitrator was no other than the brother of Pandita Chanda Bai and he was an advocate of Muttra, whose intervention and services were sought by the parties, members of the joint family, for an amicable partition of the family properties. In the award, the arbitrator said:
“I, therefore, find that division and determination of shares is the only course possible to be adopted at present. After the proceedings (several litigations were going on between the parties) are finally finished and the income is ascertained, the parties may have the same divided by metes and bounds if they so like and execute and register a deed of partition. For the present, the income after meeting necessary Government charges and collection expenses and such litigation as relate to the joint family estate, shall be divided among the co-sharers according to the shares given in Schedule B. The parties will also be entitled to take separate possession of their respective shares as specified in this award and will get themselves mutated in Government registers separately. So far as the houses are concern-ed, I have partitioned them and the allotment of the different co-sharers is given in Schedule C of this award. …. As regards the allowance-hitherto paid and payable to Pandita Chanda Bai, and Sm. Nemsunder under the will of the late Babu Deokumar Jain, those allowances-will continue to be paid. It is, however, necessary to safe guard their due payment. I have therefore set apart the properties mentioned in Schedule D of this award for the purpose of the payment of the allowance. The maintenance allowance to these ladies will be a charge on the properties in Schedule D. Babu Chakreshwar Kumar Jain will remain in possession-of Schedule D properties and will get himself mutated in register D as manager on behalf of Pandita Chanda Bai. He will keep a true and regular separate account of the property in Schedule D and will be responsible to all concerned and explain the accounts when called upon.”
Schedule A of the award describes all the immoveable properties and includes the villages. Atini and Ranbirpur. Schedule B describes the separate shares of Anupmala Devi, Nirmal Kumar Jain, his wife and each of his sons. Chakreshwar Kumar Jain, his wife and his sons. One-third was given to Anupmala Devi and one-third belonging to Nirmal Kumar’s branch was divided into eight parts. He, his wife and his six sons were each given 1/24th share. Similarly, the remaining one-third share belonging to Chakreshwar Kumar’s branch was. divided into five parts and he, his wife and his three sons were given each 1/15th share. No share was given to Pandita Chanda Bai or to Srimati Nemsunder. Schedule D, which was set apart for the purpose of payment of allowances to the two ladies, Pandita Chanda Bai and Srimati Nemsunder, and on which their maintenance allowance was made a charge, was mentioned as follows:
“Village Alini. . . . .tauzi No. 1253/8, Jama Sadar Rs. 2,678-7-4,….. .thana Dumraon….. value Rs. 18,000.”
In making the division of the house property in Schedule C the arbitrator noted:
“Pandita Chanda Bai will have right of residence in the portion allotted to Mst. Anupmala Devi.”
There can be little doubt that in the award, no proprietary right was given to Pandita Chanda Bai. Her allowance was only secured and village Atini was made subject to a charge in that respect, as well as in respect of the allowance payable to the other lady, Srimati Nemsunder. That village was treated as a part of the joint family properly in which all the members mentioned in Schedule B were given different shares. That property was directed to be kept in possession of one member, Chakreshwar Kumar Jain, and he was authorised to get his name entered in register D as manager and on behalf of Pandita Chanda Bai and he was burdened with the obligation of maintaining separate account and rendering the same to all concerned, about what may be left in his hands out of the income from that village, after paying the fixed allowances to the two ladies.
Reference to this award in register D necessarily qualifies the entry under the column “Character of interest”. No doubt it was mentioned as ‘proprietor’ but that has to be read in the light of the award. Actually it should not have been mentioned as the proprietor. That was a mistaken description but that will not be enough to ward of the responsibility of an enquirer to find out what were the terms in the award which were specifically different from that entry. The record of Chakreshwar Kumar Jain’s name as manager and in charge of Pandita Chanda Bai was also another significant factor that should have impelled a bona fide enquirer to find out why Pandita Chanda Bai, if she was really the proprietor, was not recorded in her own capacity. It will, therefore, be not enough for the plaintiffs to assert that the bona fide took the settlement from Pandita Chanda Bai, on the basis of this entry in register D alone. Chakreshwar Kumar Jain was authorised in the award to get his name mutated as manager. As was observed in the case of S.A. Zamin v. S.M.A. Ali, AIR 1922 Pal 315 if a claimant for entry in register D says that he has assumed charge of the estate or property as a manager, it is sufficient for him to establish that his possession exists, and as such, his name can be entered. Learned counsel referred to the cases of Ram Coomar Koondoo v. John and Maria McQueen, 18 Suth WR 166 (PC) and Kanhu Lal v. Palu Sahu, 5 Pat LJ 521: (AIR 1920 Pat 1). Those decisions do not say anything more than that the principle of ostensible ownership is based upon principles of equity and justice and that was recognised even before it was incorporated in Section 41 of the Transfer of Property Act. Ext. 9 cannot be put up as a proof of ostensible ownership of Pandita Chanda Bai, and there is nothing else on record to show that others who had title under the award with reference to its Schedules A and B, had put up Pandita Chanda Bai as an ostensible owner.
9. Learned Counsel for the plaintiffs, realising this difficulty, contended that the award actually gave a life interest in village Atini to Pandita Chanda Bai and the expression that the properly is subject to a charge, in respect of the allowance payable to her and the other lady, was only a device to keep that property out of the reaches of the creditors of the family. Both the parts of this contention are untenable. The award clearly stated that Pandita Chanda Bai was only entitled to receive the allowance fixed in the will of her husband and no more. To ensure that payment, village Atini was kept out of the actual joint possession of the family and was put in the possession of one member, Chakreshwar Kumar Jain so that he will be responsible for paying the allowances to the two ladies regularly and to account for the rest of the income from that village to the other members of the family, whose shares had been separately determined. If no other property of the joint family was subdued to any charge so that the creditors may have an impediment in securing those properties, as and when necessary, why should a small property with a Sadar Jama of Rs. 2678 should have been so anxiously preserved out of the bounds of such creditors? The arbitrator was Pandita Chanda Bai’s own brother and a lawyer. If, in fact, the intention was to give her title and possession over that property during her lifetime, that could have been made clearly. The property was subject to a charge on account of the allowance payable to the other lady Srimati Nemsunder and that was mentioned in the award. In that case, it is impossible to contend that that properly was given exclusively to Pandita Chanda Bai for her lifetime. There cannot be any other interpretation than that village Atini, under the award and decree, remained as a property of 14 persons having specific shares as mentioned in Schedule ‘B’ and it was burdened with a charge for payment of fixed allowances to the two ladies and that it was to remain in possession of Chakreshwar Kumar Jain. Charge does not create an interest in immoveable property. As such, Pandita Chanda Bai nor the other lady had an interest in that property, and, therefore, she could not have settled any land in that village with the plaintiffs.
10. Learned counsel for the respondents next contended that Pandita Chanda Bai’s title was not denied in the written statement, though that was asserted in paragraph 6 of the plaint. In that view, the contesting defendant should be taken to have admitted her title. In paragraph 6, it was stated:
“In Misc. Case No. 1 of 1941 a decree was passed in the Court of the Sub-Judge at Arrah on 8-1-1941 on the basis of the award of the arbitrators, in which the entire village Atini was allotted to defendant No. 7, and she (defendant No. 7) entered into exclusive possession and occupation thereof and has been appropriating the income thereof as owner.”
This was referred in paragraph 10 of the written statement of defendant No. 1 saying:
”This defendant is not aware of the allegation made in paragraph No. 6 of the plaint. So far as this defendant has come to know on enquiry, defendants 8 and 9 took out fictitious proceeding to avoid payment of income-tax as well as the debts to the creditors, which is not binding upon this defendant.”
The written statement, on behalf of defendants 13 to 15 and 17 to 19, categorically averred that the statement made by the plaintiffs in paragraph 6 of the plaint was not correct and the plaintiffs were required to prove that to the satisfaction of the Court, and issue No. 4 on the question of title of Pandita Chanda Bai, defendant No. 7, was specifically framed. The Mill, according to their case, had taken the suit land under their settlement in 1938 and since then, have been in possession. The award came in October 1940 and made into a decree of the Court in January 1941. In that view, the Mill stated in their written statement that they were not aware of those things and those proceedings were not straightforward and genuine. By implication, they undoubtedly denied and did not admit the averments about defendant No. 7’s title in paragraph 6 of the plaint. Reading the written statement as a whole, no doubt is left as to what was the defendant’s case asserting their title as tenants over the suit land under the proprietors. Rule 5 of Order 8, Civil Procedure Code, lays down:
“Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”
Whether Pandita Chanda Bai derived a title and interest in the suit immoveable property is not an allegation of fact and that question would depend upon the interpretation of Ext. 2. Plaintiffs’ assertion that under the award decree she got a title, even if not denied by the defendant, would not absolve the plaintiffs from the burden of proof in that respect. Secondly, paragraph 10 of the written statement of defendant No. 1, read in the context of other statements in that, is a denial of defendant No. 7’s title by necessary implication, or at least not an admission of the same. Thirdly, even if it is taken as an admission of her title, in absence of a clear denial, it is open to the Court to require the plaintiffs to prove it otherwise also. In this case issue No. 4 shows that the court wanted such proof. Plaintiffs, therefore, cannot escape, in any view of the matter, from the liability of proving their ‘lessor’s title, to maintain the present suit.
11. Learned counsel referred to Exts. 7 and 11, with some emphasis, and urged that, from those two documents, it will appear that the Mill admitted Pandita Chanda Bai’s title to the whole of the Jineshwar Garh Farm which, according to them, also included the suit lands. Ext. 7 is a petition of compromise filed on behalf of the parties in Title Suit No. 40/97 of 1948/49 in the Court of the Additional Subordinate Judge, Arrah. There the plaintiffs were the South Bihar Sugar Mills Ltd., (the present first defendant), and the defendants were the Jagdishpur Zamindari Company and others. There were many matters of difference between the parties which were settled, resulting in that compromise, through the mediation of a common well-wisher. Four suits were pending then, between them, in different courts. All of them were adjusted in the terms of that compromise. The parties who effected that compromise were as stated in the opening paragraph of the compromise: South Bihar Sugar Mills Ltd., Jagdishpur Zamindari Co. Ltd., Nirmal Kumar Jain, Chakreshwar Kumar Jain and R.P. Sinha, director of N.K. Jain & Co. Ltd. In paragraph 4 of that compromise, the following was stated:
“South Bihar Sugar Mills Ltd., shall pay to Sm. Chanda Bai through B. Chakreshwar Kumar Jain a sum of Rs. 12,555-10-9 (Rupees Twelve thousand five hundred and fifty five, annas ten and pies nine only) on account of the arrears of rent up to date for Jineshwargarh Farm Atini.”
In paragraph 10, it was also mentioned that that payment would be made on or before the 15th of May 1949. The words “rent up to date”, used in paragraph 4, were contended by learned Counsel to mean that the South Bihar Sugar Mills Ltd. admitted that Sm. Chanda Bai was entitled to the rent of Jineshwar Garh Farm. This interpretation is completely misconceived. There was no dispute between the Mill and Sm. Chanda Bai that was sought to be settled in that compromise. She was not a party to any of the litigations which was brought to an end by adjustment. There were claims and counter-claims between five parties, whom I have already named above and who reached the compromise finally. One of such matters was adjusted by payment of Rs. 12,555-10-9 by the mill and that was agreed upon to be paid to Sm. Chanda Bai. The Mill was liable to pay the rent for the farm to the Jain brothers. Ext. C, a cash voucher of the Mill, shows that to the estate of N & C Kumar, Rs. 3136-5-6 was paid by the Mill as the land rent of Jineshwar Garh Farm for the years 1346 and 1347 Fs. as per three receipts dated the 17th October, 1940. D. W. 15 proved that. By the time Ext. 7, the compromise, was reached on the 8th May, 1949 (1356 Fs.), another eight years’ rent with cess amounting to Rs. 12,555 and odd had become due from the Mill for the farm land. Under Ext. 2, the award decree, Chakreshwar Kumar Jain had undertaken to pay the allowance of Sm. Chanda Bai. It may be that the allowance had not been paid for some time and so, when money became available to the Jain brothers, by the compromise, from the Mill, that was sought to be diverted to liquidate that liability and Sm. Chanda Bai’s name appeared, though she was not a party, as payee, in paragraph 4 of that compromise. This cannot, in any way, mean that Chanda Bai’s right to the rent for the farm, was admitted by the Mill. Besides, the farm included lands of another village Ranbirpur, with which Chanda Bai had nothing to do and to rent of land in that village, Chanda Bai could not have any pretence of title, even of a limited owner. In that view, learned counsel’s contention that paragraph 4 of the compromise amounted to an acceptance of Chanda Bai’s title to village Atini, cannot hold any substance. The farm headquarters were admittedly in village Atini, although it comprised of lands in the other village, and that is why, in paragraph 4, Atini was mentioned.
12. Ext. 11 was an agreement of the same date, the 8th May, 1949, between the South Bihar Sugar Mills Ltd. and Nirmal Kumar Jain, Chakreshwar Kumar Jain and Chanda Bai through Chakreshwar Kumar Jain as her attorney, in which it was stated that Chakreshwar Kumar Jain and Sm. Chanda Bai through him, shall in confirmation of the title of the South Bihar Sugar Mills Ltd. to the lands mentioned in the schedule (which is the same as the present suit lands) execute and register documents that may be necessary and surrender from the persons in whose favour documents have been executed by them in respect thereof and the Mill shall pay Rs. 17,000 at the time of registration of the aforesaid deed. It was further stipulated that Babu Chakreshwar Kumar Jain shall on registration and receipt of Rs. 17,000 also hand over title deeds and other documents relating to that land to the Mill and the Mill shall pay Rs. 2,312-12-6 to Sm. Chanda Bai through Babu Chakreshwar Kumar Jain on account of arrears of rent for 117 bighas of land which was involved in the case under Section 145, Criminal Procedure Code, up to 1356 Fs. This agreement admittedly was not acted upon. Learned Counsel for the plaintiffs, however, urged that though the agreement did not materialise, yet its terms can be taken into account as an admission by the Mill of the title of Sm. Chanda Bai to the suit lands. The case under Section 145, Criminal Procedure Code, had ended on the 3rd of June 1948, in favour of the Mill and they could only be evicted from their possession through process of law thereafter. Sm. Chanda Bai was not a party to that case. Before the date of this agreement, the registered lease in favour of the plaintiffs had already come into existence. To purchase peace and restore harmonious relationship (this has been stated in that agreement) the three parties to the agreement decided upon an arrangement which, however, they did not act upon. None of the terms of the agreement admitted the title of Sm. Chanda Bai. On the other hand, Mills’ title as a tenant was admitted and that could only be on the basis that the Mill had taken the settlement from the Jain brothers. By this document, which was never put into action, no estoppel can be pleaded against the Mill in regard to the plaintiffs’ or their alleged lessor’s title.
13. The plaint and the written statement in a rent suit (R. S. 1 of 1952) Exts. 3-a and 4, were also referred by learned Counsel to show that Chakreshwar Kumar Jain, as manager for Pandita Chanda Bai, instituted a rent suit against the Mill alleging that she was 16 annas proprietor of Mauza Atini and the Mill as cultivators of 1004 bighas and odd, were liable to pay an annual rent of Rs. 1067 including cess and Rs. 3726-10-6 was due from them on that account for the period 1356 to 1359 Fs. The written statement clearly denied the assertions and demand, as made in the plaint. How these two documents can be used as an admission, against the Mill, of the title of Pandita Chanda Bai, I cannot understand. Besides, that rent suit was filed on the 8th of September, 1952, more than two years after the institution of the present suit and has, therefore, little relevancy. Obviously, that was an attempt to create evidence against the Mill. The appellant’s contention that Chakreshwar Kumar Jain is behind the present litigation is not wide off the mark. Large sums of money having already been taken from the Mill, Chakreshwar Kumar Jain appears to have hit upon a plan to raise further money on the same land from the plaintiffs by setting up Chanda Bai as the lessor. It is interesting to note that in Ext. 5, the registered lease, Chakreshwar Kumar Jain kept himself completely out of any responsibility for anything stated in that document. The opening paragraph says:
“I, the executant on behalf of Pandita Chandabai hereby execute this deed and in the recitals, Pandita Chandabai is cited as I, the executant.”
Plaintiffs did not take the slightest care to get any committal from Chakreshwar Kumar Jain in that document about the alleged title of Pandita Chanda Bai to the suit lands. In another part of that document, it was stated that 16 annas proprietary interest in mauza Atini belonged to Chanda Bai, Nirmala Kumar Jain and Chakreshwar Kumar Jain and in the Partition Suit No. 1 of 1941 in the 1st Court of the Subordinate Judge at Arrah, the entire share in Mauza Atini was allotted to the share of Pandita Chanda Bai and her name was entered in register D as ‘milkiat interest for lifetime’. This statement is completely belied by the provision in the award-decree (Ext. 2) and the entries in Ext. 9, register D.
14. Another futile attempt on behalf of the plaintiffs was to contend that Pandita Chanda Bai’s title could only be challenged by the reversioners and not by any third party like the Mill. The present suit is to eject the Mill from the disputed lands and as a defence it is certainly open to the defendant to dispute the plaintiffs’ title, in which case they are bound to fail. Even a trespasser in possession, can only be resisted by a person who has a legal claim. Though I have held that the Mill did not take settlement of the disputed land as a part of the farm in 1938, yet, they, having come in possession of this land, cannot be ousted legally by any person who does not prove to have a subsisting title to the land. The crux of the present case depends entirely on the nature of interest that was created in favour of Pandita Chanda Bai in the award, with reference to the village Atini. I have not the slightest hesitation, on reading that award, that she did not acquire any interest in immoveable property in that village.
Plaintiffs have signally failed to prove any act of exercise of any such right on her part in any part of that village, much less on the suit properties. Exts. 1 series are rent receipts brought on record by the plaintiffs. Exts. 1 to 1-b are receipts in respect of shikmi settlement for three different years, which were rightly held by the court below not to be genuine. Learned counsel could not improve upon that. The other three rent receipts are of the dates 22nd November 1946, 11th September 1948 and 17th August 1948 for the years 1354 and 1355 FS. corresponding to 1947 and 1948. The Mills’ possession had already been declared by a competent Court as against the plaintiffs in a proceeding under Section 145, Criminal Procedure Code, which started in August 1946 and ended on the 3rd June 1948. These three rent receipts appear to have been brought into existence after that date and the purpose is obvious. One would hardly expect the plaintiffs to pay rent to a person like Pandita Chanda Bai after the Mills’ possession was upheld in a Court of law. The registered lease was on the 26th of June, 1946. 1354 Fs. begen from September 1946. How could Rs. 245-10-3 became payable for 1354 Fs. within two months of the settlement on the 22nd of November 1948 (Ext. 1(c)). Such inherent improbability could hardly be explained by learned counsel. The trial Court was justified in not placing any reliance upon these documents. Thus Pandita Chanda Bai’s possession at any time over the suit land or any land in village Atini has not been proved. Pandita Chanda Bai, though a party, has not been examined in this case.
15. There is thus no escape from the conclusion that the plaintiffs’ lessor Pandita Chanda Bai did not have any interest in the suit land and could not have settled that with them. Plaintiffs have, therefore, failed to prove that they have any title to the land in dispute and for that reason, they cannot recover possession of the land in suit, nor can they have a decree for mesne profits or damages.
16. Alternatively, they claimed for a decree for Rs. 23,759-12-0 being the amount of premium paid by them with interest, Rs. 1,730-6 as expenses incurred by them in clearing the jungles and levelling the suit land, with interest and Rs. 10,898-15-0 as damages in respect of the property (mentioned in Schedule J) on which they had grown crops which were cut away and removed by the defendants. They included interest in that also. The details were given in Schedule (La). In the written statement, defendant No. 7 admitted to have received the premium. In Ext. 5 she also admitted that receipt. There was, however, no agreement in the deed of lease for payment of interest in case the plaintiffs did not get possession. Thus they can only get a decree for Rs. 17550 against defendant No. 7, Pandita Chanda Bai, as neither title nor possession was conveyed to them by her. About the expenses, claimed to have been incurred in reclamation of the land, no proof was adduced. The trial court found and there was justification for that, that the plaintiffs actually did not come in possession of the suit lands, and as such, neither they could have grown any crop which was forcibly taken away by the defendants, nor could they incur any expenditure on the land. For these reasons, the plaintiffs can only be entitled to recover the actual amount of premium–Rs. 17,550 which was proved to have been paid to defendant No. 7.
17. The result is that the plaintiffs’ suit is decreed for Rs. 17,550 against defendant No. 7, and if that amount is not paid within two months from the date of the decree, they will be entitled to recover interest at the rate of 6 per cent on that amount from the date of the decree till the date of realisation. Their suit is dismissed against other defendants. Plaintiffs will be entitled, however, to costs against defendant No. 7 in proportion to their success. The judgment and decree of the trial Court are modified as above. The appeal is allowed in part. The appellant will get costs from the plaintiffs in this Court, as well as in Court below.
A.B.N. Sinha, J.
18. I agree.