Mannumal v. Prit Bai — 1969 DIGILAW 218 (RAJ)

LODHA, J.—This is a defendants second appeal arising out of a suit for possession of a room and mesne profits for the same. It arises under the following circumstances: The plaintiff respondent Smt. Prit Bai purchased in auction held by the Regional Settlement Commissioner. Rajasthan, Jaipur on 12tb January, 1957, property bearing No.AMC.VI1/884 XIV/164 (old number) corresponding to AMC No XXII/89 (new number) situated at Nawab-Ka-Bera Ajmer. The sale certificate in respect of this property was granted to the appellant by the Managing Officer, Ajmer on 20-6-1962, copy of which has been placed on the record, and marked Ex. 7A. The plaintiff alleged in the plaint held on 21-6-1965 that on or about 1-6-1962 the defendant-appellant Mannumal forcibly occupied the room situated in the south of the property purchased by the plaintiff. The plaintiff, therefore, prayed that a decree for possession of the room in dispute may be granted in her favour and she may also be awarded Rs. 173/- as damages for use and occupation upto the date of the suit and also future mesne profits at the rate of Rs. 5/- per month till the date of delivery of possession of the room to her. 2. The defendant denied the plaintiffs claim to the room in question an pleaded that he had been in continuance possession of the same since 1-1-1948 as owner and the same formed part of his own house. He also pleaded that the plaintiffs suit is barred by limitation as she had not been in possession of the room in question within 12 years before the date of the suit. 3. After recording the evidence produced by the parties the learned Munsiff, Ajmer City (West), Ajmer decreed the plaintiffs suit for possession of the room in question and also directed that the defendant shall pay damages for use and occupation at Rs. 5/- per month from 1-6-1962 till the date of handing over possession of the room to the plaintiff. 4. Aggrieved by the judgment and decree of the trial court the defendant filed appeal in the court of District Judge, Ajmer which was transferred to the Court of Civil Judge, Ajmer who by his judgment and decree dated 31-7-1968 affirmed the judgment and decree of the trial court and dismissed the defendants appeal. Consequently the defendant has come in second appeal to this court. 5. Consequently the defendant has come in second appeal to this court. 5. Learned counsel for the appellant has urged in the first instance that the judgment of the lower appellate court is not in accordance with law inasmuch as the documents on the basis of which the judgment has been given in favour of the plaintiff have not been discussed nor their contents and effect carefully examined. He has also urged that since the plaintiff was out of possession of the room in question and the defendant was in possession of the same, the burden of proof squarely lay on the plaintiff to prove that the defendant who was in possession of the room in dispute was not its owner. But the lower appellate court, it has been argued, has dealt with the case as if the burden of proof in the case lay on the defendant. It is contended that the findings arrived at by the lower court are vitiated on account of this erroneous approach by the lower court. It has also been vehemently contended that the plaintiff has not proved the documents relied upon by him and the line plans on which the lower courts have based their judgments are inadmissible in evidence and no presumption of correctness can be drawn in respect of them. Learned counsel also argued that the plaintiff had come forward with a definite case that she had been forcibly dispossessed from the room in question by the defendant on 1-6-1962, but altogether a different case has been made out by the plaintiff in the course of evidence inasmuch as the plaintiffs case as disclosed in the evidence produced by her is that the defendant gave pagdi (premium) to the plaintiffs alleged tenant and thereby managed to enter into the house. It is argued that there is a clear variance between the pleading and the proof, and the lower courts should not have decreed the plaintiffs suit on such allegations as had not been pleaded but had only been out in the course of evidence. It is argued that there is a clear variance between the pleading and the proof, and the lower courts should not have decreed the plaintiffs suit on such allegations as had not been pleaded but had only been out in the course of evidence. In this connection it has also been argued that there is no truth in the plaintiffs allegation that the defendant took possession of the room in question from the plaintiffs tenant Mangumal, who would have been the best witness for proving this fact but he has not been examined by the plaintiff Lastly the learned counsel contended that every adverse inference must be drawn against the plaintiff as she has not come in evidence to prove her case and has thereby not given any opportunity to the defendant to test the correctness of her version b|y cross-examination. 6. On the other hand learned counsel for the respondent urged that the findings arrived at by the lower court are pure questions of fact and cannot be interfered with in second appeal. He has also argued that the judgment of the first appellate court does not suffer from any of the infirmities pointed out by the learned counsel for the appellant and the findings arrived at by the lower appellate court are based on admissible and good evidence. 7. After having heard the learned counsel for the parties at some length it appears to me that the decision of this appeal rests mainly on two points. In the first instance it is to be determined whether the plaintiff has succeeded in proving her title to the room in question and the second point is whether the suit is within limitation? 8. Before I embark upon the consideration of the verious contentions advanced by the learned counsel for the parties it would be proper here to narrate the conclusions arrived at by the courts below in respect of these two salient points. The learned trial court held that the plaintiff has failed to prove that the defendant forcibly or illegally dispossessed her of the room in question on or about 1-6-1962 but at the same time it also found that the defendant too had failed to prove that he had been in possession of the suit room since 1-1-1948 as pleaded by him. As regards ownership he came to the conclusion that the suit room was not a part of the property purchased by the defendant from the Custodian on 16-6-1969 by sale certificate Ex. 1 A. However, he impliedly held that the suit room was a part of the property purchased by the plaintiff vide sale certificate Ex. 7A, In the result he decreed the plaintiffs suit and awarded mesne profits to her at the rate of Rs. 5/-per month from1-6 1962, the alleged date of dispossession, though his finding was that the plaintiff had failed to prove that the defendant occupied the suit room on or about 1-6-1962. On appeal the learned Civil Judge concurred in the finding of the trial court that the disputed room was not a part of the defendants property but was a part of the property purchased by the plaintiff from the Custodian of Evacuee property. As regards possession over the room in dispute, the first appellate court held that the whole of the house including the room in question having vested in the Custodian prior to 12-1-1957, the defendant could not have occupied the property adversely to the Custodian, and the defendants possession shall be deemed to be on behalf of the Custodian as provided in sec. 8(4) of the Administration of Evacuee Property Act, 1950. Thus in his view the suit was within limitation. The learned Civil Judge also upheld the finding of the trial court in the matter of mesne profits and in the result dismissed the plaintiffs suit. 9. The important question for my determination is whether the plaintiff has succeeded in proving her title to the room in question? Her case is that this room is a part and parcel of the house purchased by her from the Custodian Department vide sale certificate Ex. 7A. The sale certificate however does not give a detailed description of the property sold nor its measurements though the boundaries of the house sold have been mentioned in it. The plaintiff has also put on record a letter from the Managing Officer, Ajmer addressed to her dated 30th March 1965 by which the former had informed the latter that the line plan of the property No. VII/844 sold to her cannot be supplied but its area is 659 sq. yds. The plaintiff has also put on record a letter from the Managing Officer, Ajmer addressed to her dated 30th March 1965 by which the former had informed the latter that the line plan of the property No. VII/844 sold to her cannot be supplied but its area is 659 sq. yds. This letter has been proved by P.W. 1 Karamchand who states that it bears the signature of Shri Harish Chandra Chowdhary, Managing Officer. This witness is a clerk in the office of the Managing Officer, Evacuee Property. Ajmer and brought in the court the record of the properties sold No. XIV/164 and XIV/165 admittedly purchased by the plaintiff and the defendant respectively, and submitted in the Court copy of plan of the plaintiffs property marked A in which the room in dispute has been shown as AB-CD. He has also stated that there were only nine rooms at the time property No. XIV/165 (sold to the defendant) in the possession of the Custodian. The plaintiff has also examined one S. R. Gupta (P. W. 2} a draftsman in the office of the Chief Settlement Commissioner, Delhi, who also brought in the court the record of the two properties including the valuation forms and line plans prepared by the Department and produced copies of the same. Ex. 2 is the line plan of the plan of the plaintiffs house. Ex. 3 is the copy of its valuation form. Ex.4 and Ex. 5 are copies of the valuation form, and the line plan respectively of the defendants house. Besides these documents, the plaintiff has also relied upon a copy of plan submitted by Mohammad Hussain Evacuee (who before being declared an evacuee was owner of the plaintiffs property) before the Municipal Board, Ajmer some time in 1939 A. D. in which the room in question has been shown as part of that house. This plan has been marked Ex 6 and has been tendered in evidence by P. 3 Wadhu-mal, maternal grandson of the plaintiff, who is looking after her maternal grandmothers property. The document referred to above specially the line plans Ex. 2 and Ex.5, and the plan Ex.6 no doubt indicate that the room in question was a part of the property No. 884, purchased by the plaintiff. The document referred to above specially the line plans Ex. 2 and Ex.5, and the plan Ex.6 no doubt indicate that the room in question was a part of the property No. 884, purchased by the plaintiff. But the learned counsel for the appellant has strenuously urged that these documents are inadmissible and not properly proved and therefore they cannot be taken into consideration. His contention is that no presumption as to the correctness of the contents of these maps can be drawn without calling the maker thereof In support of his contention he has relied upon Dwijesh Chandra vs. Naresh Chandra (1), Mohammad Yusuf vs. D (2), Nana Akpandia vs. Fiaga Egblomesse (3) Santram vs. Sital Das (4), Ghulam Mohammad vs. Samundar (5), Nityanund Roy c Abdar Raheem (6), Dwarkanath Misser vs. Tartia Moyidabia (7), Ramchunder Sao vs. Bunseedhur Naik (8), Tilakdhari Singh vs. Maharaja Kesho Prasad Singh (9), Basavapunnareddy vs. Krishnayya (l0) Linton Molesworth & Co. vs. Jagannath Supakar (11), and Durga Prasad Singh vs. Rajendra Narayan Bagchi (12). 10. On the other hand learned counsel for the respondent contended that these maps should be presumed to be correct and accurate under sec. 83 of the Indian Evidence Act as they purport to be made by the authority of the Central Govt. In support of his stand he has relied upon Ram Kishore vs. Union of India (13), Ram Kishore vs. Union of India (14) s and Bishan Singh vs. Central Government (15). He has also in this connection referred to secs. 8(2) (c), and 40(2)(f) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and Rules 24,90 and 91 of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955. 11. Sec. 36 of the Indian Evidence Act lays down that the statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or, in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts. In this connection reference may be made also to sec. In this connection reference may be made also to sec. 88 of the Indian Evidence Act under which court shall presume that maps or plans purporting to be made by the authority of the Central Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate. 12. In Dwijesh vs. Naresh Chandra(l) it was observed that the map by itself is nothing but a statement made by the maker by means of lines and pictorial representation instead of by word of mouth as to the state or configuaration of a particular site and the objects standing thereon. To admit in evidence a map without calling the maker thereof is the same as admitting in evidence statements made by a third party who is not called a witness. In other words, it amounts to admitting hearsay. The mere proof of the map by itself is only proof of the fact that the map was prepared by the maker thereof. The fact that a particular person prepared a map or in other Words made certain statements by lines, cannot without or apart from and independent proof of the correctness of its contents have any bearing on the matters in issue. 13. Again in Mohammad Yusuf vs. D (2) it was observed that the evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. It was held that an attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at naught the well recognised rule that hearsay evidence cannot be admitted. It was further held that even if the entire document is held formally proved that does not amount (to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. 14. It was further held that even if the entire document is held formally proved that does not amount (to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. 14. In Nana Akpandja vs. Fiaga Egllomesse(3) their Lordship of the Privy Council while dealing with a map adduced in evidence held that it was not absolutely clear that the map was made under the authority of any Government, and observed as follows: — "Their accuracy must depend upon the source from which the information is obtained, and in their Lordships view no sufficient evidence as to the chiefs or other information who have been questioned is forthcoming, nor is it clear how far that evidence has been tested by checking the evidence of one informant against that of another." 15. In Ram Kishore vs. Union of India (13) the learned Judge explained the distinction between the two kinds of maps viz. (1) published maps or charts generally offered for public sale; and (2) maps or plans under the authority of Government, and it was held that the statement made under the first kind of maps are merely relevant and there is no presumption as to their accuracy, whereas in the second kind of maps it was observed that under sec. 83 of the Evidence Acts a presumption must be drawn for their accuracy. 16. In Ram Kishore vs. Union of India (14) their Lordships were pleased to observe that the presumption of accuracy can be drawn only in favour of maps which satisfy the requirements prescribed by the first part of sec. 83. 17. In the present case the maker of the plans and the valuation forms has not come in evidence and the copies of the same have been produced from the record. These documents no doubt form the record of an official body viz. the Chief Settlement Commissioner. Under section 36 maps of plans made under the authority of the Central Government as to matters usually represented or stated in such maps or plans are themselves relevant facts, and under sec. 83 the Court must presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were made and are accurate. 83 the Court must presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were made and are accurate. Since the valuation forms and the line plans Ex. 5 were prepared by the Custodian Department and are public documents, which can be proved by production of the certified copies of the same, it is not necessary to examine the persons who actually prepared those valuation forms and plans and the principle laid down in Dwijesh Chandra vs. Naresh Chandra(l) that to admit in evidence a map without calling the maker thereof tantamount to admit hearsay evidence does not apply in the present case, and the only question is whether these maps satisfy the requirements prescribed by the first part of sec. 83, i.e. whether they purport to be made by the authority of the Central Government ? 18. Sec. 8(2)(c) of the Displaced Persons (Compensations and Rehabilitation) Act, 1954 which will hereinafter be described as "the Act" provides that for the purpose of payment of compensation under this Act the Central Government by Rules provide for the valuation of all property, shares and debentures to be transferred to displaced persons. So also sec. 40 of the Act lay down that the Central Government may make rules providing for the valuation of property, shares and debentures, which can be transferred to displaced persons. R. 24 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 makes provision for valuation of acquired evacuee property which is an allotable property. R. 25 provides for transfer of acquired evacuee property which is an allotable property to persons in occupation thereof, who hold a verified claim. R. 90 lay down the procedure for sale of property by public auction. R. 91 provide the procedure for sale of property by tender. Thus there is provision in the Act as well as in the Rules referred to above, for preparation of such documents and the valuation of forms as well as as line plans in respect of the two properties purport to be made by the authority of the Central Government and it must be presumed that they were so made and are accurate. Detailed measurements of both the properties purchased by the plaintiff as well as the defendant are given in these documents and they are in my opinion official documents, and do contain valuable evidence of the things at the time they were made. I do not mean to say that they are conclusive. They may be shown to be wrong but in the absence of evidence to the contrary they may be judi-cally received in evidence as correct. The other authorities relied upon by the learned counsel for the appellant are in my opinion distinguishable. 19. In Nityanund Roy vs. Abdar Raheem (6) the documents under consideration were Government measurement Chittas produced from the Collectorate and there was nothing to show that they were the record of measurements made by any Government Officer. 20. In Dwarkanath Misser vs. Tarita Moyidabia(7) it was held that Government resumption Chittas, in the absence of the resumption proceedings, are not conclusive evidence of title as against third persons. Thus the point of law decided in this case has no bearing on the facts and circumstances of the present case. 21. Ramchander Sao vs. Bunseedhur Naik (8) was also a case of Chittas made by Government for its own private use prepared for the information of the Collector, and it was held that they were not evidence against private persons for the purpose of proving that the lands described therein are or are not of a particular character or tenure. 22. I have examined all the cases cited by the learned counsel for the appellant and do not think it necessary to make any detailed reference to them, as in my opinion, the observations made in those cases have no application to the facts and circumstances of the present case. 23. The result of the foregoing discussion is that the lower court did not commit any error of law in taking into consideration the valuation and the plans Ex. 2 to Ex. 5 and basing its finding regarding the ownership thereon. 24. In this connection it may also be pertinent to observe that the plaintiff came forward with a definite case in the plaint that the room in question was a part of the property purchased by her from the Custodian Department. 2 to Ex. 5 and basing its finding regarding the ownership thereon. 24. In this connection it may also be pertinent to observe that the plaintiff came forward with a definite case in the plaint that the room in question was a part of the property purchased by her from the Custodian Department. On the contrary the defendant has nowhere alleged in the written statement that the suit room was a part of the property purchased by him from the Custodian, and he contended himself by merely stating in para No. 2 of the written statement that the plaintiff had never been in possession of the said room. In his evidence as D. W. 1 defendant Manumal has no doubt stated that it would appear from the plan Ex. Al that the disputed room falls within the property purchased by him. Ex. A. 1 is the sale certificate granted in favour of the defendant with respect to the property purchased by him and it no doubt makes a mention of the boundaries, but it is not at all helpful in finding out whether the room in question forms a part of his property. He has stated that there are ten rooms in his house but according to P. W. 1 Karamchand there were only nine rooms in the house sold to the defendant when it was in possession of the Custodian. It is significant that Karamchand was not cross extra- mined by the defendant on this point at all. The plan Ex. 6 filed by Mohammad Hussain evacuee, the former owner of the property purchased by the plaintiff also shows that the room in question was part of the property purchased by the plaintiff. P. W. 3 Wadhumal, who is the maternal grandson of the plaintiff has stated that the property purchased by the plaintiff originally belonged to one Mohammad Hussain who was declared evacuee. He has stated that the room in dispute forms part of this property and one Mangharmal Dhobi was residing in it as a tenant. His statement has been corroborated by Gagumal, who lives in the neighbourhood of the plaintiff and the defendants houses. The lower court has chosen to rely on the evidence of Wadhumal Learned counsel for the respondent submitted that an adverse inference should be drawn against the plaintiff for not coming in the witness box. His statement has been corroborated by Gagumal, who lives in the neighbourhood of the plaintiff and the defendants houses. The lower court has chosen to rely on the evidence of Wadhumal Learned counsel for the respondent submitted that an adverse inference should be drawn against the plaintiff for not coming in the witness box. It may be observed that as it appears from the statement of P. W. 3 Wadhumal the plaintiff was about 80 years old and Wadhumal being her maternal grandson was looking after her affairs. In these circumstances there is no warrant for drawing an adverse inference against her for not coming in evidence. 25. The net result of the foregoing discussion is that I concur with the finding of the lower court that the plaintiff has succeeded in establishing her ownership to the room in question. 26. This brings me to the question of limitation. The plaintiffs case is that the defendant illegally and forcibly occupied the room in question on or about 1-6-1962. P. W. 3 Wadhumal has stated that at the time when the plaintiff purchased the house from the Custodian the room in question which forms part of the house was in occupation of one Manghanmal Dhobi as a tenant, who used to pay Rs. 5/-per mensem as rent and the defendant took possession of the room from Manghanmal. He has further stated that the plaintiff gave a telegram in this connection to the defendant. Ex. 8 is the receipt of the telegram and Ex. 9 is its copy. P. W. 4 Gagumal has corroborated Wadhumals statement. Learned counsel for the respondent has challenged the correctness of this version on the ground that there is a variance between the pleading and proof of the point. It is urged that the case pleaded in the plaint was one of illegal and forcible occupation, whereas during the course of evidence the plaintiff has tried to prove that the defendant took possession of the room in question from Manghanmal after paying Rs. 50/- as hush money to Manghanmal. However. I fail to see any variance between the pleading and proof in this connection. So far as the plaintiff is concerned the defendants occupation was illegal even though he got into possession of the room in collusion with tenant Maghanmal by paying some hush money, to him. 50/- as hush money to Manghanmal. However. I fail to see any variance between the pleading and proof in this connection. So far as the plaintiff is concerned the defendants occupation was illegal even though he got into possession of the room in collusion with tenant Maghanmal by paying some hush money, to him. In this view of the matter I do not see any reason to differ from the finding of the lower court that the plaintiff was in possession of the suit property within 12 years from before the date of the suit, which was instituted on 18-4-1965. The lower court has also held that prior to the purchase of the property by the plaintiff on 12-1-1957 the property vested in the Custodian and under sec. 8(4) of the Administration of Evacuee Property Act the defendant even if in possession shall be deemed to be holding it on behalf of the Custodian as the property had vested in the Custodian as an evacuee property. I too am of opinion that the defendant has failed to prove that he has become the owner of the property in question by adverse possession. In view of what I have stated above it must also be held that the plaintiff has brought the suit within limitation i. e. within 12 years of her dispossession. Both the points regard in ownership and limitation having been decided in favour of the plaintiff respondent the decree for mesne profits granted by the lower courts in her favour must also stand. 27. The result is that this appeal has no force and is hereby dismissed. But in the circumstances of the case X leave the parties to bear their own costs.