Kshetrimayum Kumud Singh v. Elangbam Ibohal Singh — 1961 DIGILAW 28 (GAU)

JUDGMENT:- This second appeal is directed against the judgment and decree of the District Judge in Civil Appeal No.57 of 1958, by which he dismissed the said appeal and confirmed the judgment and decree of the Munsiff in Title Suit No.116 of 1955. The Munsiff had passed a decree against the appellant (defendant) for delivery of possession of the said property to the respondent (plaintiff). 2. The respondent as plaintiff filed the said Title Suit No.116 of 1955 against the appellant in respect of one Lourak of land said to be a part of patta No.70/480 Th. T. belonging to the respondent his case was that he leased the said one lourak to the appellant in 1954 on agreement to pay loushai of 6 pots of paddy, hut that the appellant did not pay loushal and refused to vacate the land. The appellant contended in the written statement that the and which he was in possession of was part of patta No.70/450.Th. T., that it belonged to one Moirangthem Yaima Singh (D.W.1) who had reclaimed it from waste land as early as 1939 and remained in possession until 1952, that the appellant purchased from the said Yaima Singh for Rs.125/- under an unregistered deed dated 17-2-1952, (which was allowed to be marked in the suit as Ext.A/1) and that ever since his purchase he continued in possession and that he has thus perfected title to the land by adverse possession and that the story of the respondent regarding the alleged lease was false. In the first trial which was held in 1956, the learned Munsiff held that the land in question was part of respondents patta No.70/480-Th. T., but that the case of lease set up by the respondent was not proved. He therefore gave a decree to the respondent for possession, but disallowed the claim for arrears of rent. The learned Munsiff did not give any finding on the plea, of adverse possession taken by the appellant on the ground that it was not pressed before him and so could be taken as waived. 3. The matter was taken in appeal by the appellant in C.A. No.91 of 1956. The learned District Judge - Mr. S.N Banerji, remanded the case to the lower Court. 3. The matter was taken in appeal by the appellant in C.A. No.91 of 1956. The learned District Judge - Mr. S.N Banerji, remanded the case to the lower Court. He stated in his judgment in appeal that the appellant stoutly denied that he was in possession of any portion of land under patta No.70/480 and adduced evidence in support of his case, but the Munsiff without giving any reason simply stated that there was sufficient evidence for the respondents allegation that the suit land of one lourak was under the occupation of the appellant. He held that the Munsiff had not framed the issues correctly and had not given any findings on the real matters in controversy between the parties and so he remanded the case. In my opinion, this was a purposeless remand and it was the learned District Judge who had not understood the real matters in controversy between the parties. The appellant and the respondent were agreed that the land in dispute was in the possession of the appellant and so there was no necessity at all to give any finding on that question as the learned District Judge thought. The learned Munsiff had given a finding that the land in dispute was really part of respondents patta No.70/480-Th. T. Thus, the respondents title to the land was proved. But at the same time, on the respondents plea of tenancy, the learned Munsiff had given a finding that it was not proved. It was the duty of the learned District Judge to have decided on the evidence whether that finding of the Munsiff was correct. But no attempt was made by the District Judge to deal with the correctness of that finding. The learned Munsiff had framed issue No.2 on that point, and given his finding. Still, without going into the question, the learned District Judge directed an issue to be raised again on the same point and remanded, it for trial. That was a meaningless remand. A further question would then have arisen whether the respondent would be entitled to a decree for ejectment on his title alone, if the tenancy set up by him was found against. That will depend on the question whether the respondent was in possession of the suit land within 12 years of his filing the suit and whether the appellant, as claimed, had prescribed for title by adverse possession. That will depend on the question whether the respondent was in possession of the suit land within 12 years of his filing the suit and whether the appellant, as claimed, had prescribed for title by adverse possession. Thus respondents possession within 12 years of suit and appellants claim of adverse possession had to be decided by the Court. But the learned District Judge did not go into those questions, as he failed to understand the real questions in controversy between the parties. Surprisingly, the learned District Judge held that the questions whether the disputed land was part of patta No.70/480 or patta No.70/450 and whether the appellant acquired any right or title over the land by adverse possession were not issues which would arise on the pleadings of the parties. Such remands must be avoided by appellate Courts. 4. After the remand, the appellant wanted to clarify his possession and he filed an additional written statement. In that written statement, he stated that the disputed land was in the possession of Yaima Singh from 1939 until he sold it to the appellant in 1952 and that even if the said land fell under the respondents patta No.70/480-Th. T., the suit filed in 1955 was barred by adverse possession and limitation as the said land was in the possession of the appellant and his predecessor from 1939 continuously and without interruption. This written statement was received by the lower Court on payment of costs to the respondent. Fresh issues were then raised in the suit. The relevant issues are: (1) Whether the defendant is in possession of the suit land? (2) Did the defendant hire the suit land on condition of paying lousal of 6 pots of paddy for the year 1954 to the plaintiff? (3) Has the defendant acquired right and title over the suit land by adverse possession? (6) Is the plaintiff entitled to the reliefs as claimed? The Munsiff gave, findings on issues 1 to 3 that the appellant was in possession of the suit land, that the alleged tenancy was not proved, that as the appellant had purchased from Yaima Singh land under patta No.70/450-Th. T., while the land in dispute formed part of respondents patta No.70/480-Th. The Munsiff gave, findings on issues 1 to 3 that the appellant was in possession of the suit land, that the alleged tenancy was not proved, that as the appellant had purchased from Yaima Singh land under patta No.70/450-Th. T., while the land in dispute formed part of respondents patta No.70/480-Th. T. the appellant cannot tack on the possession of Yaima Singh of the disputed land to his own possession by purchase of another land from Yaima Singh, and that there was no question of adverse possession. On issue 6, the learned Munsiff held that as the respondent had proved his title to the land in dispute by purchase in Court auction in Sale Case No.16-V of 1940-41 on 27-9-1940 and as the appellant did not prove his title, the respondent was entitled to a decree for possession, but not for a decree for loushal. 5. When the matter went up in appeal at the instance of the appellant in Civil Appeal No.57 of 1958, the District Judge Mr. Chandra Prakash held that the learned Munsiff was wrong in going into the plea of adverse possession raised by the appellant as in the order of remand the District Judge Mr. Banerji had directed him to decide only the questions as to whether the appellant was in possession of the suit land and as to whether the plea of tenancy was true, that as there was ample evidence on the record to prove the respondents title to the suit land the learned Munsiff should not have gone into the question of adverse possession or given a finding on it and that the respondent was rightly held to be entitled to a decree for ejectment. He therefore dismissed the appeal. The result was that the District Judge himself did not go into the question of respondents possession within twelve years of suit or of adverse possession claimed by the appellant. 6. I am unable to agree with the District Judge that the learned Munsiff should not have gone into the plea of adverse possession set up by the appellant. I have already pointed out that the earlier order of remand by the District Judge Mr. 6. I am unable to agree with the District Judge that the learned Munsiff should not have gone into the plea of adverse possession set up by the appellant. I have already pointed out that the earlier order of remand by the District Judge Mr. Banerji was a wrong Order and that he did not consider in appeal the real matters in controversy between the parties, the plea of adverse possession being one such matter in controversy and that he remanded the case without considering as to whether the findings of the Munsiff on the said matters were correct on the evidence adduced in the case. Further, after the remand, the appellant had filed an additional written statement, which was accepted by the Court. On that additional written statement, the pleat of adverse possession set up by the appellant would definitely arise for decision. The Munsiff had every right to receive the additional written statement under Order 6 Rule 17 C.P.C. and he had to raise necessary issues which would arise on the amended written statement and to give his decisions on them. The appellate Judge Mr. Chandra Prakash cannot say that the learned Munsiff had no jurisdiction to decide the questions which would arise under the amended written Statement. It was therefore the duty of the appellate Court to have decided in appeal whether the finding of the Munsiff on the plea of adverse possession which was against the appellant was correct or not. He disposed of the appeal without deciding the question. His judgment simply amounted to this. The respondent had title to the land. The appellant was admittedly in possession of the land. The learned Munsiff had no jurisdiction to decide any other question like adverse possession or limitation in view of the directions given in the remand order. Hence the respondent was entitled to a decree for possession. It is evident that the appellate Court lost sight of the additional written statement and the fact that the issues were based on it. 7. Hence the respondent was entitled to a decree for possession. It is evident that the appellate Court lost sight of the additional written statement and the fact that the issues were based on it. 7. Now in appeal, it was argued for the appellant that in a case for ejectment filed by a plaintiff on the basis that the defendant was the plaintiffs tenant, if the defendant denied the tenancy and the Court found in favour of the defendant, the suit virtually amounted to one for possession on the ground of dispossession by the defendant and Article 142 of the Limitation Act will apply and the Court cannot give relief to the plaintiff unless the plaintiff satisfied the Court that he was in possession of the property within 12 years of suit. It was pointed out that even if the defendant set up adverse possession in such a suit, the burden was on the plaintiff to show his possession within 12 years of suit and that the defendant did not even have to prove his case of adverse possession except to show that the appellant was not in possession within 12 years. It was pointed out that in the present case, the appellant had pointed out in his additional written statement which was received by the Court that the respondent had no possession of the land within 12 years of suit and that the appellant and his predecessor-in-title were continuously in possession ever since 1939 and that it was the duty of the lower Courts to have raised the issue whether the respondent was in possession within 12 years of suit and to have given a finding on it. 8. For the respondent, it was argued that the question of limitation or adverse possession cannot the gone into in the suit in view of the remand order passed by District Judge Mr. S.N. Banerji, as the appellant did not question the remand order by taking the matter to a higher Court. It was said that the remand order had become final. In support of that contention the respondent relied on the decision in Charles N. Ambrose v. Meenakshi Ammal Ramal Ammal, AIR 1953 Trav-Co 109. S.N. Banerji, as the appellant did not question the remand order by taking the matter to a higher Court. It was said that the remand order had become final. In support of that contention the respondent relied on the decision in Charles N. Ambrose v. Meenakshi Ammal Ramal Ammal, AIR 1953 Trav-Co 109. In .that decision it was held that where a deposit was made by a debtor and the creditor objected only to the sufficiency of the deposit and did not object to the validity on the ground of limitation and the creditor contested in appeal only about the correctness of the amount deposited and the appellate Court remanded the case for a decision on the question of sufficiency of the deposit, the lower Court erred in going beyond the terms of the order and in holding that the deposit was invalid on the ground that it was not made in time. That was a case where the appellant neither in the appeal nor in, the lower Court raised the plea of limitation and adverse possession. 9. In our present case, the point was raised, an issue, was framed and evidence was also let in before the Munsiff. No doubt the learned Munsiff, in his first judgment before remand stated that the plea of adverse possession was not pressed. That was an easy way of disposing of the issue. But it is the duty of Courts to give findings on issues on which evidence was let in, unless the party gives in writing that he did not press the issue. I also find that the issue was pressed in the appeal before Mr. Banerji. If it was not pressed there was no occasion for Mr. Banerji to refer to the matter in his judgment and say that the question of limitation and adverse possession did not arise at all. Thus-this is a case where the appellate Court thought wrongly, as I have pointed out and as I shall hereafter show, that the question of limitation did not arise at all and remanded the case, without deciding the real question at issue between the parties. In the case of such a remand order wrongly restricting the questions to be decided, is the lower Court precluded from deciding the real matters at issue? In the case of such a remand order wrongly restricting the questions to be decided, is the lower Court precluded from deciding the real matters at issue? Even if the lower Court is so precluded, will the higher Courts be precluded from considering the question when the matter comes up before them? These are the questions which arise for decision. 10. This matter is governed by S.105 C.P.C. which is as follows: "105. (1) save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." It will be seen from S.105(12) that in the case of a remand order from which an appeal lay and no appeal is filed, the party shall thereafter, be precluded from questioning its correctness. Thus, if no appeal lay, a party is not precluded from showing in a later appeal against the final order that the remand order was wrong. Now if we go to Order 43 Rule 1(u) it will be seen that art order under Rule 23 of Order 41, remanding a case is appealable where an appeal would lie from the decree of the appellate Court. No other order of remand will therefore be appealable. It is clear from the order of remand in the present case that it was not made under Order 41 Rule 23 C.P.C. The lower Court had not disposed of the case on any preliminary point and the appellate Court did not reverse the finding of the lower Court on the said preliminary point and remand the case for decision on further issues. It is clear from a reading of the judgment of Mr. Banerji, that he remanded the case because, according to him, the judgment was not written properly and correct issues were not on the real matters in controversy between the parties. It is clear from a reading of the judgment of Mr. Banerji, that he remanded the case because, according to him, the judgment was not written properly and correct issues were not on the real matters in controversy between the parties. He suggested the framing of two Issues, but he failed to see that the two issues had already been framed by the Munsiff and findings given on those issues. Thus, it is clearly not a case which would come under Order 41 Rule 23. As such, the remand order was not appealable, and it can be questioned by the party aggrieved in the appeal against the final decision in the case. In any case, the High Court is not precluded from going into the correctness of the said remand Order. 11. In that connection, the decision of the Supreme Court "Satyadhyan Ghosal v. Sm. Deorajin Debi", reported in 1960-3 SCR 590 : ( AIR 1960 SC 941 ) can be usefully referred to. In that decision the Supreme Court has observed at p.594 (of SCR) : (at p.943 of AIR): "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of tact or on a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where S.11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher Court roust in any future litigation proceed on the basis that the previous decision was correct. The result of this is that the original court as well as any higher Court roust in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter again? Again, after referring to certain Privy Council decisions, the Supreme Court states at P.600 (of SCR) : (at p.946 of AIR): "It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or eyen though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand. There appears to be no reason therefore why the appellant should be precluded from raising before this Court the question about the applicability of Sec.28 merely because he had not appealed from the High Courts order of remand, taking the view against him that the section was applicable". There appears to be no reason therefore why the appellant should be precluded from raising before this Court the question about the applicability of Sec.28 merely because he had not appealed from the High Courts order of remand, taking the view against him that the section was applicable". In our present case, I have pointed out that no appeal lay from the said order of remand and therefore the appellant is not precluded from questioning the correctness of the same in the present second appeal. I have also pointed out that the issue of limitation and adverse possession also arose on the additional written statement received by the Court after the remand order. 12. Having disposed of the preliminary objection raised by the respondent, we shall now proceed to see whether the lower Courts had to deal with the question of limitation in the present case. I may here refer to the plaint filed by the respondent. The suit was based on title and the necessary Court fee as for a title suit was paid. But the allegation made in the plaint was that the appellant was the tenant of the respondent and was let into possession in 1954, and had failed to pay the rent and refused to vacate. In such a case the respondent could have brought the suit under S.7 clause xi(cc) of the Court-fees Act and Paid the Court fee on that basis. It is clear there fore that the respondent wanted a decision on the strength of his title. It turned out in the suit that, the story of the tenancy of the appellant was false, as all the Courts have found against it and the respondent did not file any appeal. Thus, the position was that the respondents claim rested on the basis of his title against the appellant who was in possession of the property. The respondent had pleaded that he was is possession of the property and that he entrusted it to the appellant. When the entrustment was. therefore found against, it meant in effect that the respondent was in possession and that the appellant had dispossessed him. The respondent had therefore to prove that the dispossession was within 12 years of his suit, as otherwise the dispossession will itself have deprived him of his title. It is a clear case therefore where Article 142 of the Limitation Act would apply. The respondent had therefore to prove that the dispossession was within 12 years of his suit, as otherwise the dispossession will itself have deprived him of his title. It is a clear case therefore where Article 142 of the Limitation Act would apply. Article 142 is for possession of immovable property, when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession. The starting point of limitation is the date of the dispossession or discontinuance. Thus when a plaintiff files a suit against the defendant in possession of the property on the plea that the plaintiff was in possession and that the defendant has subsequently entered possession on entrustment by him and the entrustment is found against, it is for the plaintiff to establish under Article 142 of the Limitation Act that his dispossession took place within 12 years of suit. Otherwise he cannot get relief. It does not matter in that suit whether the defendant pleaded adverse possession or not. The burden will be on the plaintiff to prove that his suit was in time and mere proof of title will not be sufficient to give him a decree for possession against the stranger in possession. 13. Now, when we turn to the respondents title to the suit land, it will be seen that it is based on Ext.4 which discloses that there was a sale of the suit land for arrears of revenue on 27-9-1940, in which the respondent became the purchaser. The sale certificate itself has not been produced in the case. Nor did the respondent say that the possession of the land was given to him by the authorities after the said sale. He only pleaded that in the Jamalbandi his name was mutated in place of the previous owner and that he has been paying the revenue. Mere payment of revenue and mutation in the Jamabandi will not prove that the respondent obtained possession of the land after purchasing in revenue auction. Neither the respondent nor his witnesses stated that he obtained possession. In fact, the trend of the evidence was that it was in 1954 or so that the Circle Amin went to demarcate the land and found that the appellant was in possession of a piece of the land included in the said revenue sale. Neither the respondent nor his witnesses stated that he obtained possession. In fact, the trend of the evidence was that it was in 1954 or so that the Circle Amin went to demarcate the land and found that the appellant was in possession of a piece of the land included in the said revenue sale. Thus, the evidence, as it stood, did not show that the respondent ever entered into possession of the suit land after the revenue sale. Perhaps, that was the reason why the respondent had to set up a false case of tenancy against the appellant. Thus, the position was that on the evidence as it stood, the respondents possession within 12 years of suit was not proved at all. On the other hand, on the side of the appellant, positive evidence regarding adverse possession by the appellants predecessor-in-title one Yaima Singh from 1939 and the appellants own possession from 1952 was given. The learned Munsiff was of the opinion that the appellant cannot tack on the possession of Yaima Singh between 1939 and 1952 to his own possession from 1952 till the date of suit to prove adverse possession. That was certainly a wrong view. There was no dispute as to the identity of the land. The appellant and his predecessor were in occupation of the suit land on the basis that it was part of patta No.70/450. Even, if subsequently, it was found to be part of patta No.70/480-Th. X., since there was no dispute about the identity of the land, and hence about the possession of the land, the possession of the appellants predecessor-in-title can certainly be tacked on. The finding of the Munsiff on the issue regarding adverse possession on that basis certainly cannot be accepted. The said finding has not been dealt with by the appellate Court at all I do not propose to give a finding on the plea of adverse possession in this second appeal on the evidence adduced in the case, as I am remanding this case to give an opportunity to the respondent to prove his possession within 12 years of suit under Article 142 of the Limitation Act. Of course, to meet such a case, the appellant will be entitled to adduce evidence of adverse possession. Of course, to meet such a case, the appellant will be entitled to adduce evidence of adverse possession. But the burden will be certainly on the respondent to prove his possession and it will not be necessary for the appellant to prove his adverse possession in case the respondent fails to prove his possession within 12 years. 14. I am unable to agree with the plea of the respondent that it is Article 144 of the Limitation Act which will apply to the present case and not Article 142. Article 144 is a residuary Article and it can be applied only if no other Article would apply. In the present case, it is clear that it is Article 142 which will apply. A direct decision on the point where the facts were almost similar to the facts in the present case is Alara Khan Sahib v. Karuppannaswajni Nadan, AIR 1938 Mad 415 . That was a suit for ejectment and the plaintiff set up the case that the defendant was his tenant. It was proved that the plea tenancy was false arid that the plaintiff had no possession at all of the land within 12 years of suit. The Madras High Court held therein that when the plea of tenancy is found to be false, it was tantamount to saying that the defendant, when he repudiated the plaintiffs title as landlord, has dispossessed him so that there was in effect an assertion of possession and dispossession, precisely what was contemplated under Article 142 and that the mere fact that the recital in the plaint was false and the plaintiff was never in possession, but on the contrary strangers were in possession was not sufficient to attract Article 144. 15. The above decision was quoted with approval in the later Full Bench decision of the Madras High Court in Official Receiver of East Godavari at Rajahmundry v. Chava Govindaraju, AIR 1940 Mad 798 (FB). That decision dealt with certain earlier Privy Council decisions on the applicability of Article 142 and Article 144. They are Mohima Chunder Mozoomdar v. Mohesh Ghunder Neogi, ILR 16 Cal 473 (PC), Mahamjnad Amanulla Khan v. Badan Singh, ILR 17 Cal 137 (PC) and Dharani Kanta Lahiri v. Gabar Ali Khan 25 Mad LJ 95 (PC). That decision dealt with certain earlier Privy Council decisions on the applicability of Article 142 and Article 144. They are Mohima Chunder Mozoomdar v. Mohesh Ghunder Neogi, ILR 16 Cal 473 (PC), Mahamjnad Amanulla Khan v. Badan Singh, ILR 17 Cal 137 (PC) and Dharani Kanta Lahiri v. Gabar Ali Khan 25 Mad LJ 95 (PC). The Full Bench held that when a purchaser in Courts auction held in execution of a mortgage decree, sues for the ejectment of a person in possession of a property which he has bought, it is Article 142 which would apply and he has to show that he was in possession within 12 years of suit. The burden lies upon the plaintiff to prove this and there is no onus on the defendant to prove adverse possession for a period of 12 years. 16. It is not possible to consider the various decisions on this question as there is a Plethora of decisions expressing divergent views. In the latest decision on the point by the Mysore High Court in Baswanneppa Yellappa v. Basavannappa, AIR 1960 Mys 83, the P.C. decisions as well as the F.B. decisions of various High Courts have been dealt with in detail and it has been held that in a suit for ejectmenlt the plaintiff cannot succeed on his title alone, but has to prove that he was in possession within 12 years and that it is Article 142 which would apply and not Article 144. I certainly agree with that ruling. 17. The respondent had therefore to satisfy the Court before he could obtain a decree for possession against the appellant that he was in possession within 12 years and the burden to prove this was on him. I could have decided it myself in this second appeal and on the evidence now before me I could have held that the respondent has not proved his possession within 12 years. But the lower Court did not deal with the suit on the basis of Article 142 and no issue was framed on that point and the respondent had no opportunity of adducing any evidence to discharge the onus on him to prove his possession within 12 years. It is not therefore proper for me to decide the question without giving such an opportunity. 18. It is not therefore proper for me to decide the question without giving such an opportunity. 18. I therefore set aside the decree of the lower Courts and remand the suit to the Court of the Munsiff. He will frame the following issue in the suit. "Was the plaintiff in possession of the suit property within 12 years of suit". He will also consider afresh the issue relating to adverse possession set up by the defendant. Both parties will be given opportunity to let in evidence on the new issue framed and also relating to adverse possession. He will dispose of the suit in the light of the observations contained in this judgment. The appellant will be entitled to the costs of this appeal. The further costs in the suit will follow the result of the suit. Case remanded.