Soyam Jugol Singh v. Takhelmayum Tombi Singh — 1967 DIGILAW 19 (GAU)

JUDGEMENT This is an appeal filed by the defendants in Title Suit 10 of 1961 on the file of the Sub-Judge (I) in Imphal against the judgement and decree date 30-5-1964 decreeing the suit filed by them for recovery of possession of the suit land, about 46 paris and one sangam in extent, situate in Iseigapat, covered by Patta No. 2/5 IET and for recovery of future mesne profit at 14 pots of paddy per sangam from the date of the plaint upto the date of delivery of possession of the suit land to the respondents. 2. The facts of the case, involving a long drawn-out litigation Between the parties, which led to the filing of this appeal are as follows :- (a) Iseigapat was originally a marshy land close to Yumnam Khunou village of the appellants. It was said to have been the abode of Sylvan deities. In spite of the objection of Pandit Loisang of the then His Highness, the Maharajah of Manipur, the land was thrown open to settlement for cultivation purposes to the landless men under Council Resolution No. 10 dated 4-5-1949 The appellants who are the residents of Yumnam Khunou, were afraid of reclaiming the land without taking the permission of Pandit Loisang. The Deputy Commissioner issued notices on 12-3-1952 calling for applications to be filed upto 30-4-1952 for settlement of the land. It appears that the appellants made an application to the Deputy Commissioner to give them time to file their applications for settlement, so that they might take the permission of Pandit Loisang. But the Deputy Commissioner granted settlement of high level land measuring 55 Bighas, 2 Kathas and 5 Lessas, i.e. about 7½ paris or 18.50 acres adjacent to Iseigapat on its eastern side to the 83 respondents, who are residents of different places in Imphal and its suburbs under an annual patta No. 2/6 Naharup IET. He also granted provisionally the settlement, of the suit land measuring 347 B. 2K. 18L i.e. about 46 paris or 115 acres to the respondents as per Ex. B/1 on dereservation from the Grass-mahal, after placing the matter before the Land settlement Committee on 16-9-1954. (b) Thereupon, the appellants filed C.C. Revenue Appeal Case 97 of 1954 in the Court of the Chief Commissioner against the order of the Deputy Commissioner granting settlement of Iseigapat. B/1 on dereservation from the Grass-mahal, after placing the matter before the Land settlement Committee on 16-9-1954. (b) Thereupon, the appellants filed C.C. Revenue Appeal Case 97 of 1954 in the Court of the Chief Commissioner against the order of the Deputy Commissioner granting settlement of Iseigapat. The Chief Commi ssioner allowed the appeal as can be seen from Ext. B/2 on 20-12-1954 and directed that fresh notices inviting applications for settlement from the landless persons of Yumnam Khunou should be issued and that settlement of the land should be granted to the appellants after considering their cases. But, the respondents filed Writ Application 2 of 1955 in this Court under Article 226 of the Constitution of India to quash the order of the Chief Commissioner. This Court allowed the Writ Application as can be seen from Ext. A/22 and quashed the, orders of the Chief Commissioner on 14-5-1955. (c) The Revenue Assistant to the Deputy Commissioner passed an order on the basis of Ext. A/22 granting settlement of the suit land to the respondents on 19-6-1956. Alleging that the suit land is covered by annual Patta 2/5 Naharup, IET bearing. Dag No. 2082 and measuring 347 B. 2K and 18 I, and that the suit land is not covered by the judgement as per Ext. A/22, the appellants preferred C.C. Revenue Appeal case 35 of 1956 in the Court of the Chief Commissioner. But, the Chief Commissioner dismissed it as can be seen from Ext. A/21. The appellants filed C.C. Revenue Review Case 1 of 1957. But, the Chief Commissioner dismissed that also on 22-2-1957. Then, the appellants filed Declaratory Suit 3 of 1958 in the Court of the First Sub-Judge. Manipur, for declaration that the orders of the Revenue Assistant to the Deputy Commissioner dated 19-6-1956 and the orders of the Chief Commissioner dismissing C.C. Revenue Review Case 35 of 1956 on 10-11-1956 and C.C. Revenue Review case 1 of 1957 on 20-2-1957 were illegal and void. But, the First Sub-Judge dismissed the suit on 15-12-1958 as can be seen from Ext. A/10. The appellants carried the matter in appeal to this Court, in First Civil Appeal Case 9 of 1959. But, this Court dismissed the appeal on 9-3-1961 as can be seen from Ext. A/12. (d) On the ground that the respondents got settlement of the suit land under the orders of the Deputy Commissioner. A/10. The appellants carried the matter in appeal to this Court, in First Civil Appeal Case 9 of 1959. But, this Court dismissed the appeal on 9-3-1961 as can be seen from Ext. A/12. (d) On the ground that the respondents got settlement of the suit land under the orders of the Deputy Commissioner. Manipur, dated 16-9-1954, that they were in possession and enjoyment of the suit land and that the appellants attempted to dispossess them they started proceedings U/S. 145. Cr. P.C. against the appellants in NFR Case 119 of 1956 on the file of the First Class Magistrate in Imphal. As can be seen from Ext. A/13 dated 13-12-1956, the Magistrate confirmed the respondents possession of the suit land. Again, there were proceedings U/S 107 Cr. P.C. in NFIR Case 108 of 1957 before the Magistrate First Class, Imphal. He too held on 9-6-1958 that the respondents were in possession of the suit land and ordered the appellants to keep peace for one year. Again, after the expiry of the period of one year, there were proceedings between the parties U/S. 145 Cr. P.C. started by the respondents in NFIR Case 93 of 1960 or the file of the S.D.M./I. E. As can be seen from Ext. A/17 dated 2-12-1960, the Magistrate held that the appellants entered into possession of the suit land in March or April, 1960 and declared that the appellants were entitled to retain their possession until they were evicted therefrom in due course of law. 3. The respondents, therefore, filed Title Suit No. 10 of 1961 on the file of the First Sub-Judge, Imphal, for recovery of possession of the suit land and for recovery of future mesne profits. The Sub-Judge held that the suit land was settled in favour of the respondents on an annual lease in 1956 under Patta No. 2/5, that they continued to be the settlees by paying the annual Government assessment, that the respondents were in possession of the suit land upto March or April, 1960, when they were dispossessed by the appellants, but that the Revenue authorities did not cancel the annual patta of the respondents and settle the land on the appellants, that the suit for possession without prayer for declaration of their title to the suit land is maintainable and that the respondents are entitled to recover possession of the suit land. The learned Sub-Judge accordingly decreed the suit and further decreed that the respondents art entitled to recover mesne profits at 14 pots of paddy per "sarmam". The defendants, therefore, filed the present appeal, being aggrieved with the judgement and decree of the Sub-Judge. 4. The learned counsel for the appellants raised three contentions in the appeal. His first contention is that the respondents have no title to the suit land and that the suit is not maintainable without prayer for declaration of their title to the suit land. His second contention is that the suit, instituted by 83 plaintiffs as against the two defendant-appellants representing, the villagers of Yumnam Khunou and other villagers interested in the suit land is not maintainable, and that they should have filed separate suits against, each of the persons in possession of separate plots. His third contention is that the lower Court went wrong in passing joint decree for mesne profits against all the villagers, represented by the appellants without payment of court fees on the amount of the mesne profits decreed. 5. Regarding the first contention raised by the learned counsel for the appellants, he argued that Ext. A/22 (Certified copy of the judgement of this Court in Writ Application 2 of 1955) related to 7½ paris or 18.50 acres of land adjoining Iseigapat towards its eastern side, that this Court set aside the order of the Chief Commissioner covered by Ex. B/2 to that extent only and that the latter order to assign the suit land afresh to others stood. He further argued that, though the Deputy Commissioner grantee annual patta to the respondents on 16-9-1954 for the suit land U/S.11 of the Assam Land and Revenue Regulation (Regulation I of 1886), which was made applicable to the State of Manipur in 1949 after its merger with the Indian Union Territory (vide also Pureiromba Deity v. Chief Commr., AIR i960 Manipur 20, the lease expired, that the respondents did not obtain any further annual lease, that they have no title to the suit land and that the appellants, who are in possession of the suit land, are entitled to patta under the Rules framed under the said Assam Land and Revenue Regulation and that, therefore, the respondents are not entitled to recover possession of the suit land. The first part of this contention of the appellants counsel was considered in Declaratory Suit 3 of 1958 on the file of the First Sub-Judge, Imphal filed by the appellants for declaration of their title to the suit land. One of my learned predecessors considered this aspect of the case in Ext. A/12 (Certified copy of the judgement dated 9-3-1961 in First C.A. 9 of 1959). His judgement is very clear on this point. He held that as the high level land on the eastern side of the suit land was settled on the respondents an equal extent of the land was separated from the rerunning marshy land and that the Deputy Commissioner settled the said land only on the respondents. He further held that as per Ext. A/22 Judgement in Writ Application 2 of 1955 this Court quashed the order of the Chief Commissioner covered by Ext. B/2 relating to the entire land including the suit land and that the order of the Deputy Commissioner settling the suit land on the respondents U/P 2/5 stood. The parties herein were also parties to First C. A- 9 of 1959 and are bound by the Judgement of this Court. So, there is no substance in the same contention, which was once again raised before me, that Ext. A/22 does not relate to the suit land. 6. Regarding the latter Dart of the contention of the learned counsel for the appellants, it is seen that Ext. A/3 (Copy of the Jamabandi) shows that Patta No 2/5 was given to all the respondents for the suit land. Though it is a private copy no objection was taken to its admissibility in the lower Court, Patta No 2/5 is an annual patta But the respondents did not produce any other patta to show that the said patta was renewed in their favour from year to Year. But, there is the evidence of P.Ws. 1 to 5(N. Kanhai Singh, Y. Kalachand Singh, Ksh. Nile Singh, Y. Lashman Singh, and M Moirangthou Singh) to show that the respondents continued to be in possession of the suit land after it was settled on them and delivered to them by P.W. 1 (N. Kanhai Singh). P.W. 1 (N. Kanhai Singh) worked as Amin attached to the Imphal East Tehshil. It was he who delivered the suit land to the respondents on 26-7-1958 as per Ext. A/1. P.W. 1 (N. Kanhai Singh) worked as Amin attached to the Imphal East Tehshil. It was he who delivered the suit land to the respondents on 26-7-1958 as per Ext. A/1. He proved Exts. A/2, A/2-1 and A/3. P.W. 2 (Y. Kalachand Singh) was engaged as labourer by the respondents in harvesting the paddy crops in or about 1955. P.W. 3 (Ksh. Nilo Singh) served as Circle Amin in Imphal Tehshil Office. He inspected the suit land in 1948 or 1949 and got the water drained off through a culvert from the suit land with the permission of the P.W.D., Manipur. He proved Ext. A/4 (report) submitted by his successor after P.W. 3 demarcated the land and retired from service. P.W. 4 (Y. Lashman Singh) is one of the plaintiffs. He narrated the previous history of the case and the various proceedings as set out in this judgement. P.W. 5 (M. Moirangthou Singh) was engaged by the respondents in or about 1954 to clear the jungle and wild grass. Though D.Ws. 1 to 4 (L. Gouramani Singh, T. Tombi Singh. O. Thamalmacha Singh and Ch. Ibomacha Singh) stated that the appellants have been in possession of the suit land ever since it was reclaimed, all of them admitted that the suit land was reclaimed by the respondents at heavy expense and that the villagers did not apply for pattas for the same, before the respondents reclaimed it on sentimental fear for the Deities. 7. In further proof of the respondents possession of the suit land from about 1953-1954 upto March or April, 1960, there are also land revenue receipts, which show that the respondents paid land revenue for the suit land ever since. Ex. A-6 shows that they paid the land revenue for the suit land for 1959-60. Ext. A/18 shows that the respondents paid the land revenue for the suit land for 1962-63. Ext. A/20 shows that no arrears of land revenue were due under the patta in question. Also Ext A/13 shows that the respondents were in possession of the suit land in 1955-56 Ext A/14 shows that the respondents were in possession of the suit land upto 19-6-1959. Ext. A/17 shows that the appellants entered into possession of the land in March or April, 1960. Also Ext A/13 shows that the respondents were in possession of the suit land in 1955-56 Ext A/14 shows that the respondents were in possession of the suit land upto 19-6-1959. Ext. A/17 shows that the appellants entered into possession of the land in March or April, 1960. The suit, was filed on 1-7-1961 Thus, the documents in the case also prove that the respondents were in possession of the suit land upto March or April 1960. 8. The appellants have not sot any document to show that the suit land was granted to them under any patta by the Government Nor did they produce any land revenue receipt for the suit land for any year. The learned counsel for the appellants relied on the evidence of P.W. 1 (N. Kanhai Singh) in the cross-examination that the respondents did not get possession of the suit land. As already stated, the respondents were not in possession of the suit land from March or April, 1960 and P.W. 1 was examined on 11-11-1963. Thus, the respondents were not in possession of the suit land for at least 3 years before P.W. 1 (N. Kanhai Singh) was examined on 11-11-1963, and his evidence has reference only to this fact. The appellants counsel also relied on Ext. B/3 dated 24-12-1957, wherein the Deputy Commissioner stated that the respondents did not take possession of the suit land though patta was granted to them and that they should take possession of the same and reclaim it. The evidence of P.W. 1 (N. Kanhai Singh) shows that the suit land was put in possession of the respondents subsequently on 25-7-1958 and Ext. A/14 shows that the respondents continued to be in possession of the suit land upto 19-6-1959. 9. Though the original patta was for one year and though it was not renewed, the respondents title cannot be questioned by the appellants, who are mere trespassers. Even if the appellants right to possession is not valid, they are entitled to be in possession of the suit land and their possessory title to it is valid, as against the whole world except the true owner. The Government is entitled to evict the respondents or refuse to grant patta to them. But, it is not open to the appellants to contend that the respondents have no valid title to the suit land because the appellants themselves are mere trespassers. The Government is entitled to evict the respondents or refuse to grant patta to them. But, it is not open to the appellants to contend that the respondents have no valid title to the suit land because the appellants themselves are mere trespassers. However, the learned counsel for the appellants relied on Dimbeswar Datta v. Deputy Commr. Sibasasar, AIR 1954 Assam 159 in support of his contention that after the expiry of the annual lease, the respondents lost their title to the suit land. In that case the annual patta in favour of the appellants provided for their right to possess the land only for one year it was held that the patta holders title to the land did not extend beyond one year and that the Government could take over a portion or entire area of the land covered by the lease after paying compensation under clause (5) of the patta even before the expiry of the lease. This case does not apply to the facts of the present case as the present case does not deal with any dispute between the respondents and the Government. The decisions relied on by the learned counsel for the respondents have direct bearing on this point. In Prasanna Ram v. Balabox, AIR 1950 Assam 209 it was held that an annual patta confers good title upon the person to whom the patta is issued until it is either cancelled or notice of non-renewal is given to the patta holder by the authorities concerned that the possession of a person other than the annual patta holder is that of a tresspasser and that the latter cannot claim any right of the patta-holder or that the annual patta should be issued to him. Vide also Madha Ram v. Satyanath AIR 1955 NUC (Assam) 618 and Seh Ram Baisva v Gopi Nath. AIR 1955 NT5C (Assam) 631. The title of the respondents to the suit land is thus valid as against the appellants. 10. When the appellants filed the first C. A. Case 9 of 1959 in this Court the several contentions of both the parties were gone into and decided as can be seen from Ext. A/12. AIR 1955 NT5C (Assam) 631. The title of the respondents to the suit land is thus valid as against the appellants. 10. When the appellants filed the first C. A. Case 9 of 1959 in this Court the several contentions of both the parties were gone into and decided as can be seen from Ext. A/12. The parties are the same in that case and in this case, but for the fact that the Government was also made party in Declaratory Suit 3 of 1958 and First C A Case 9 of 1959 by the appellants herein. But a perusal of Ext. A/12 shows that this Court found that the respondents reclaimed the land even in 1953, that they were in possession and enjoyment of it and that they had valid title to the suit land as against the appellants. A study of Ext. A/12 shows that no contention was raised by the appellants that the patta 2/5 represents an annual lease and that the respondents herein lost their title to the suit land after the expiry of the lease As such, not only on merits do the appellants fail, but also their contention in this regard is barred by constructive res judicata Also. Ex. A-12 further shows that the title of the respondents to the suit land was declared. So, there was no need for them to pray for declaration of their title to the suit land in the present Title Suit No 10 of 1961. 11. The second contention of the learned counsel for the appellants that separate suits should have been filed against each appellant also without merits. The respondents filed the suit under Order 1 Rule 8 C.P.C. praying for permission to sue the appellants in representative capacity. Permission was also granted. According to the respondent they are co-owners of the suit land. The defence of the appellants is also that they jointly own the suit land. The previous proceeding and the present proceedings in all the Courts proceeded on the footing that each set of parties was in joint possession and enjoyment of the suit land. So, there is no force in the contention that the suit was not properly instituted. 12. But, the third contention of the appellants counsel about the lower Courts judgement and decree regarding future mesne profits is well founded. So, there is no force in the contention that the suit was not properly instituted. 12. But, the third contention of the appellants counsel about the lower Courts judgement and decree regarding future mesne profits is well founded. The lower Court did not give any direction that Court fee is payable on the mesne profits which are to be ascertained. After the respondents obtain delivery of the suit land they have to file a separate petition under Order 20 Rule 12 C.P.C. for ascertainment of mesne profits After they are ascertained, the respondents will have to pay court fee and thereafter only the decree becomes executable. As such the judgement and decree of the lower Court are liable to be modified to this extent. 13. In the result the appeal is allowed in part as indicated above regarding the ascertainment of mesne profits. In other respects the judgement and decree of the lower Court are confirmed with costs Appeal partly allowed.