Laisram Noyon Singh v. Miajan Mia — 1968 DIGILAW 86 (GAU)

JUDGMENT This is an appeal by the appellant in Civil Appeal No. 37 of 1960 of the District Judge Manipur against the judgment and decree D/-22-7-1964 dismissing the appeal filed by him against the judgment and decree of the Second Subordinate Judge dated 12-1-1960 in T. S. No. 62/1957/35/1958 decreeing the suit filed by the first respondent herein for declaration of his title to and for recovery of possession of the plaint schedule land 7-B 3-K 4-L under patta No. 102/428-Khabam and for permanent injunction restraining the appellant and the other respondents from interfering with the first respondents right to and possession of the suit land. 2. The first respondent (Miajan Mia) filed T. S. No. 62/1957 on the file of the Munsiff at Imphal for declaration of his title to and for recovery of possession of the plaint schedule land and for permanent injunction against the appellant and the respondents 2 and 3 and the deceased wife of the second respondent Laisram Mera Singh, who were added as defendants 2, 1, 3 and 4 respectively, restraining them from interfering with his right to and possession of the suit land. His case is that the suit land belonged to Laisram Mera Singh (1st defendant - second respondent) herein. It was sold in auction on 23-10-1940 in execution of a warrant in Darbar Criminal Case No. 11 of 1940. It was purchased by one Ngairangbam Kunja Bihari Singh. The auction was duly confirmed in his favour and he took delivery of the land. Subsequently, he sold the land to the first respondent herein (plaintiff) under a registered sale deed dated 8-3-1943 for Rs. 250 and delivered possession of the land to him. The first respondent got the land mutated in his name. He was paying the land revenue regularly. The second respondent (1st defendant) L. Mera Singh took lease of the land from the first respondent in 1942 agreeing to pay rent at the rate of 12 ¼ pots of paddy per year. But he committed default. The first respondent filed Civil Suit No. 303 of 1944 in the Court of Cheirap for realisation of the rent for two years and obtained a decree. But he committed default. The first respondent filed Civil Suit No. 303 of 1944 in the Court of Cheirap for realisation of the rent for two years and obtained a decree. He executed the decree in Execution Case No. 33 of 1945-46 in Cheirap Court which was disposed of on 27-9-1945; and again in Execution Case No. 33 of 1950 on the file of the Subordinate Judge, Manipur, which was disposed of on 21-9-1950. The first respondent realised a part of the decretal amount. He filed Execution Case No. 8 of 1956 in the Court of the Munsiff in Manipur for realisation of the balance. Also, he obtained decree against the second respondent for the arrears of rent for the subsequent years and realised the same in Execution Cases Nos. 5 and 6 of 1953 on the file of the Court of Munsiff at Imphal. 3. But, as the second respondent continued to be in possession of the suit land, the first respondent filed Title Suit No. 47 of 1950 in the Court of Munsiff at Imphal for declaration of his title to and recovery of possession of the suit land. The suit was decreed on 21-9-1951. The first respondent obtained delivery of possession of the land on 11-5-1952 in Execution Case No. 38 of 1951. 4. But, the respondents 2, 3 and the deceased wife of the second respondent dispossessed the first respondent from the land and the first respondent filed T. S. No. 198 of 1953 against them under Section 9 of the Specific Relief Act in the Court of the Additional Munsiff at Imphal. But, the suit was dismissed on 15-2-1955. He also filed Suit No. 35 of 1953 on the file of the Munsiff at Imphal. That suit was also dismissed. 5. So, the first respondent filed T. S. No. 62 of 1957 on the file of the Munsiff at Imphal for declaration of his title to and for recovery of possession of the suit land and for permanent injunction restraining the respondents 2, 3 and the wife of the second respondent, who was made the 4th defendant from interfering with his possession. She died pendente lite. 6. Out of the four defendants, the appellant herein, who was the second defendant, contested the suit. His case is that in lieu of a loan of Rs. She died pendente lite. 6. Out of the four defendants, the appellant herein, who was the second defendant, contested the suit. His case is that in lieu of a loan of Rs. 115 borrowed by the second respondent from the appellant who are near relations, the second respondent gave the land to the appellant in 1939 and that ever since he has been in actual possession and cultivation of the suit land in his own right. He further states that he was not dispossessed and that the suit was barred by limitation. 7. The suit was transferred by the District Judge to the file of the Second Subordinate Judge. After trial, the Second Subordinate Judge upheld the case of the first respondent and decreed the suit with costs. The second defendant (appellant herein) filed C. A. No. 37 of 1960 on the file of the District Judge, Manipur. The latter confirmed the decision of the Second Subordinate Judge on 22-7-1964 and dismissed the appeal. Hence, the present second appeal. 8. The points which were argued and which arise for determination are: (i) Whether the first respondent (plaintiff) has title to and possession of the suit land within the statutory period? (ii) Whether the suit is barred by the alleged adverse possession of the appellant (second defendant)? 9. So far as the title of the first respondent P. W. 1 (Miajan Mia) to the suit land is concerned, there is ample proof that he has title to it. It is common ground that it originally belonged to the second respondent L. Mera Singh and that it was sold in auction in execution of a warrant of fine issued by the then Darbar against the second respondent in Darbar Criminal Case No. 11 of 1940 on 23-10-1940 and that it was purchased by one Ngairangbam Kunjabihari Singh of Singjamei Makha Loukrakpam Leikai, Imphal. He sold the land to P. W. 1 (Miajan Mia) under Ext. 5 registered sale deed dated 8-3-1943 for Rs. 250. It recites that the vendor delivered possession of the suit land to P. W. 1 (Miajan Mia). 10. Subsequently, the name of P. W. 1 (Miajan Mia) was mutated in the accounts vide Exts 1 and A/3 jamabandi copies of patta No. 428. 5 registered sale deed dated 8-3-1943 for Rs. 250. It recites that the vendor delivered possession of the suit land to P. W. 1 (Miajan Mia). 10. Subsequently, the name of P. W. 1 (Miajan Mia) was mutated in the accounts vide Exts 1 and A/3 jamabandi copies of patta No. 428. According to P. W. 1 (Miajan Mia) he leased out the land to the second respondent for rent and obtained decree against him in Civil Suit No. 303 of 1944 for arrears of rent and executed the same in Execution Case No. 33 of 1945-46 of Cheirap Court and Execution Case No. 43 of 1950 of the Sub-Judges Court. P. W. 1 (Miajan Mia) further alleges that he had obtained decrees against the second respondent for arrears of rent for the subsequent years also and realised the dues in Execution Cases 5 and 6 of 1953 on the file of the Munsiffs Court at Imphal. Ext. 2 certified copy of the judgment D/-21-9-1951 also shows that P. W. 1 (Miajan Mia) filed Title Suit No. 47 of 1950 in the Court of the Munsiff at Imphal for declaration of his title to and for recovery of possession of the suit land from the second respondent and that the suit was decreed on 21-9-1951 against him. P. W. 1 (Miajan Mia) further alleges that he obtained actual delivery of possession of the land on 11-5-1952 in Execution Case No. 38 of 1951 in execution of the decree in T. S. No. 47 of 1950, as can be seen from Exts. 3, 4 and 6. Ext. 6 is the report of the Bailiff P. W. 2 (Mutum Tombi Singh), who deposed that he actually delivered possession of the suit land to P. W. 1 (Miajan Mia) on 11-6-1952 by proclamation and by removing the 4th defendant and L. Noyan Singh from the suit land. P. Ws. 3 and 4 (Jalil Mia and Anjab Ali) proved the delivery of possession of the suit land to P. W. 1 (Miajan Mia), as per Ext. 6. Ext. P. Ws. 3 and 4 (Jalil Mia and Anjab Ali) proved the delivery of possession of the suit land to P. W. 1 (Miajan Mia), as per Ext. 6. Ext. 6 bears the attestations of the appellant D. W. 4 (Laisram Noyan Singh) and also the 4th defendant, and shows that, as the second respondent was not present at the time of the delivery, P. W. 2 (Mutum Tombi Singh) evicted both the persons D. W. 4 (Laisram Noyan Singh) and 4th defendant from the land and delivered possession of it to P. W. 1 (Miajan Mia). P. W. 2 (Mutum Tombi Singh) deposed that Noyan Singh (the appellant herein who attested Ext. 6) was the son of the second respondent. But, according to D. W. 4 (Laisram Noyan Singh) the second respondent has no son. The second respondent is the uncle of D. W. 4 (Laisram Noyan Singh), the appellant. The learned Subordinate Judge compared the signature of D. W. 4 (Laisram Noyan Singh) on his deposition with that found in Ext. 6 and concluded that both are identical and held that the appellant really attested Ext. 6. There is a concurrent finding of fact by both the Courts below that the land was delivered to P. W. 1 (Miajan Mia) on 11-5-1952 by P. W. 2 (Mutum Tombi Singh) the Bailiff. 11. Now, the case of the appellant has to be considered. His case in the written statement is that his uncle the second respondent gave him the suit land in 1939 in discharge of a loan of Rs. 115/-. So, according to him he has been in possession and enjoyment of the suit land from 1939. But, his evidence is quite otherwise. He deposed that the second respondent sold the land to him on 11-11-1938 for Rs. 80/-and produced Ext. A/8 for the first time in the trial Court. It is an unregistered and unstamped sale deed dated 11-11-1938, said to have been executed by the second respondent in his favour. Inasmuch as Ext. A/8 was exhibited, it is not now open to the first respondent to challenge its admissibility on the ground that it was not properly stamped. Under Section 36 of the Indian Stamp Act. this question cannot be agitated. Vide also Javer Chand v. Pukhrai Surana, AIR 1901 SC 1655. Inasmuch as Ext. A/8 was exhibited, it is not now open to the first respondent to challenge its admissibility on the ground that it was not properly stamped. Under Section 36 of the Indian Stamp Act. this question cannot be agitated. Vide also Javer Chand v. Pukhrai Surana, AIR 1901 SC 1655. It is abundantly clear that the appellant D. W. 4 (Laisram Noyan Singh) was set up by the second respondent and that the appellant has no title to or possession of the suit land independently in his own right. For, he never got his name mutated in the revenue accounts. On the other hand, Exts. 1 and A/3 show that it was the name of P. W. 1 (Miajan Mia), the first respondent, which was mutated in the accounts. The appellant produced Exts. A/1 and A/2 revenue receipts for the suit kind from 1953 to 1957. But, they all stand in the name of P. W. 1 (Miajan Mia) and show that the land revenue was paid by the appellant through P. W. 1 (Miajan Mia). It is significant to note that these revenue receipts came into existence subsequent to 11-5-1952 the date of delivery of possession of the suit land as per Ext. 6, to P. W. 1 (Miajan Mia). The appellant did not produce the prior revenue receipts on the allegation that he lost them. It is again clear that when P. W. 1 (Miajan Mia) filed Rent Suit No. 35 of 1953 in the Court of the Munsiff, Manipur against the appellant and others, the appellant did not set up his present case in his written statement. Vide Ext. A/4. Above all, there is the admission of the appellant in Paragraph 16 (B) of his written statement that the defendants 3 and 4, that is, Akoljam Ibotombi Singh and Wairokpam Ningol Laisram Ongbi Tombi Devi (wife of the second respondent Laisram Mera Singh) were also in possession of the suit land along with him. This shows that he was simply set up by the second respondent and that he has no independent title to the suit land. There is a concurrent finding of fact by both the Courts below that the appellant has no title to the suit land. 12. This shows that he was simply set up by the second respondent and that he has no independent title to the suit land. There is a concurrent finding of fact by both the Courts below that the appellant has no title to the suit land. 12. The learned counsel for the appellant contended that the appellant perfected his title to the suit land by adverse possession by being in possession of it from about 1943 to 1944 as admitted by P. W. 1 (Miajan Mia) in his cross-examination and also as can be seen from Ext. A/6, judgment of the Additional Munsiff in T. S. No. 198 of 1953 filed under Section 9 of the Specific Relief Act by P. W. 1 (Miajan Mia), that Ext. 6 proves only a mere formal delivery of possession of the suit land to P. W. 1 (Miajan Mia) and that, therefore, the suit, which was filed on 16-5-1957 is barred by limitation. Ext. A/6 shows that P. W. 1 (Miajan Mia) deposed in Title Suit No. 198 of 1953, filed by him previously, that the defendants 2 to 4 (same as the defendants in the present suit) were in continuous possession of the suit land since 1943-1944. P. W. 1 (Miajan Mia) also admitted in his cross-examination in his deposition in the present suit having deposed in the above manner. The appellants counsel argued that as the appellant was admittedly to have been in continuous possession of the suit land from 1943-1944, the alleged symbolical delivery of land to P. W. 1 (Miajan Mia) does not interrupt the continuous possession of the appellant and that, therefore, the suit is barred by limitation. He relied on Sri Radha Krishna Chanderji v. Ram Bahadur. AIR 1917 PC 197(2). Mukund Lal v. Ilam Din. AIR 1925 Lah 61, Rajendra Narayan Bhanja Deo v. Chintamani Mahapatra, AIR 1939 Pat 151 and Ramanand Pathak v. Bindhachal Tewari, AIR 1948 Pat 416 in support of the proposition that symbolical delivery interrupts the continuous possession of the party to the delivery proceedings and not that of a third party. But, the evidence on record in this case shows that the appellant was not in independent possession of the suit land in his own right. But, the evidence on record in this case shows that the appellant was not in independent possession of the suit land in his own right. He was simply set up by the judgment-debtor, the second respondent against whom P. W. 1 (Miajan Mia) obtained a decree for delivery of possession in Title Suit No. 47 of 1950 and in execution of which decree he obtained delivery of possession of the suit land, wherein the appellant also attested Ext. 6, the delivery receipt. He might have been assisting the respondent 2 in cultivating the land, as can be gathered from Para. 16 (B) of his written statement. The delivery of land obtained by P. W. 1 (Miajan Mia) is not strictly speaking "symbolical" delivery. It was a formal delivery obtained under the provisions of Order 21, Rule 35, C. P. C. It is as effective as actual delivery of the land. The formal delivery of possession interrupts the adverse possession of not only the judgment-debtor but also of persons who claim through him or derive their title from him. It is evident that the appellant, who had been set up by the second respondent and who was also evicted is also bound by the formal delivery obtained by P. W. 1 (Miajan Mia). As such, the appellant did not perfect his title to the suit land by any adverse possessions. As the suit was filed within 12 years from 11-5-1952 the date of delivery, it is not barred by limitation. 13. Another contention of the learned counsel for the appellant is that the judgments of the Additional Munsiff in Title Suit No. 198 of 1953 and in the Rent Suit No. 35 of 1953 operate as res judicata. The appellants counsel did not press this point very seriously, as he could not. P. W. 1 (Miajan Mia) filed Title Suit No. 198 of 1953 under Section 9 of the Specific Relief Act, before he filed the comprehensive Title Suit No. 47 of 1950. Ext. 6 shows that the Title Suit No. 198 of 1953 was dismissed. As it was filed under Section 9 of the Specific Relief Act, it does not operate as res judicata. Ext. A/7 is a certified copy of the judgment dated 26-2-1955 of the Additional Munsiff, Manipur, in Rent Suit No. 35 of 1953. Ext. 6 shows that the Title Suit No. 198 of 1953 was dismissed. As it was filed under Section 9 of the Specific Relief Act, it does not operate as res judicata. Ext. A/7 is a certified copy of the judgment dated 26-2-1955 of the Additional Munsiff, Manipur, in Rent Suit No. 35 of 1953. P. W. 1 (Miajan Mia) could not establish the right of tenancy as alleged by him and it was therefore dismissed. So, the judgment in these two suits cannot operate as res judicata. There are concurrent findings of fact and law by both the Courts below and they are binding on this Court. I find point No. 1 in the affirmative and point No. 2 in the negative. 14. In the result, the appeal fails and it is accordingly dismissed with costs. Appeal dismissed.