Jageshwar Mandal v. Mostt. Safia — 1971 DIGILAW 90 (PAT)

Judgment Shambhu Prasad Singh, J. 1. First Appeal No. 518 of 1964 is against original decree and the other appeal is against the amendment in the decree. The result of the litigation will, however, depend upon the result of First Appeal No. 518 of 1964. 2. These appeals are by defendants 1 and 2. The suit was for recovery of possession over 7.71 acres of land in Mauza Salempur Saini appertaining to Khata Nos. 43, 33, and 67. Mauza Salempur lies under Police Station Colgong in the District of Bhagalpur. The original plaintiff was one Tuna Mian. Initially lie filed the suit for recovery of possession over the said land in the court of Munsif 1st Court, Bhagalpur, where it was registered as Title suit No. 57 of 1958. The plaint was however, returned on the point of valuation and it was then filed in the Court of the Subordinate Judge, Bhagalpur, who by his judgment and decree dated the 19th of September, 1964 and the amendment to the decree dated 3rd August, 1965, decreed the suit. Hence the present appeals have been filed here. 3. According to the plaintiff, the aforesaid Tuna Mian possessed the lands in question as a Raiyat and used to cultivate it himself. At the request of defendant No. 1 Tuna Mian agreed to give the lands in Thika to him for a period of three years commencing from Jeth 1360 Fasli and ending in Jeth 1363 Fasli on an annual rental of Rs. 800.00 by means of a registered Thika deed dated 20th May, 1953, which is exhibit 1 in this appeal. The land in dispute was given on Thika as per the aforesaid agreement. Defendant No. 1 paid the Thika rent for the first two years of the lease and for a part of the third year. When the Thika expired, defendant No. 1 did not give up possession and instead got a petition under Sec.144 of the Code of Criminal Procedure filed in the name of Tuna Mian and obtained an ex parte order against Tuna Mian and in his favour. Tuna Mian had, however, no knowledge of it. The matter relating to the possession of the disputed land came to a head, when Tuna Mian wanted to take possession of the land and occasion for a serious riot between Tuna Mian and defendant No. 1 arose. Tuna Mian had, however, no knowledge of it. The matter relating to the possession of the disputed land came to a head, when Tuna Mian wanted to take possession of the land and occasion for a serious riot between Tuna Mian and defendant No. 1 arose. At this stage, on 4-6-1957 their dispute was referred to a Panchayati constituted of twelve persons and they are said to have jointly elected, on 13-6-1957, one Ram Sundar Mandal as an umpire. According to the plaintiffs, the Pan-chas decided that defendant No. 1 should give up the land and Tuna Mian should forgo the arrears of rent due against defendant No. 1 and should pay Rs. 200/-to the said defendant towards the price of the sugarcane crop standing on a part of the land. In pursuance of the decision of the Panchas, the plaintiffs case is that a sum of Rs. 200.00 in cash was paid to defendant No. 1 and Tuna Mian was given possession along with the standing crop. Thereafter the plaintiffs constructed a hut on a part of the land and grew crops such as Rahar, Kalai etc. on the land. Notwithstanding the acceptance of the cash amount of Rs. 200.00 from Tuna Mian, defendant No. 1 reported to the police about an apprehension of a breach of the peace. The Sub-Inspector of Police, Colgong recommended, vide his report dated 6th October, 1957, for proceedings under Sec.145 of the Code of Crimnal Procedure to be started in the matter. The police also got a proceeding under Sec.107 of the Code of Criminal Procedure started against Tuna Mian and a large number of his relations but the same was dropped. The proceedings under Sec.145 of the Code of Criminal Procedure was registered as Miscellaneous case No. 457 of 1957. The sub-divisional Officer, Sadar by his order dated 10th July, 1958 declared the possession of defendant No. 1. The crops grown in the disputed land were auctioned for a sum of Rs. 1700.00 and the amount was kept in deposit with the Sub- Divisional Officer. As stated earlier, the plaintiff instituted the suit in the Court of the Munsif first court, Bhagalpur on 4th August, 1958, which on the question of valuation came to be filed before the learned Subordinate Judge, Bhagalpur on 28th October, 1958. 1700.00 and the amount was kept in deposit with the Sub- Divisional Officer. As stated earlier, the plaintiff instituted the suit in the Court of the Munsif first court, Bhagalpur on 4th August, 1958, which on the question of valuation came to be filed before the learned Subordinate Judge, Bhagalpur on 28th October, 1958. The reliefs claimed by the plaintiffs were for recovery of possession after a declaration that the order passed by the Sub-Divisional Officer in Miscellaneous case No. 457 of 1957 was wrong and further that the plaintiffs were entitled to the sum of Rs. 1700.00 lying in deposit with the Sub-Divisional Officer as the sale value of the crops auction sold in the 145 proceedings. A decree for eviction of the defendants from the suit land as also for mesne profit were also prayed for. 4. The defendants contested the plaintiffs claim on the ground that they had been in cultivating possession of the land in dispute as an under Raiyat since the year, 1941 and as such they had acquired a right of occupancy in the suit land as under-raiyats. About the execution of the lease deed Exhibit 1 it was stated by the defendants that they had been duped under misrepresentation, fraud and undue influence in executing that document. The story of Panchayati was wholly denied and so also the payment to him of Rs. 200.00 towards the price of the standing sugarcane crop. According to the defendants they were in continuous possession of the suit land since more than 12 years before filing of the suit as an under tenant and consequently the plaintiffs had no right to evict nor had the plaintiff any right to recover the amount of Rs. 1700/-fetched in the auction sale in the course of the proceeding under Sec.145 of the Code of Criminal Procedure, which proceeding according to the defendants had been correctly decided. 5. According to the pleadings of the parties the main question which requires to be decided is with regard to the fact as to whether the defendants had established their right as an under raiyat by being in possession of the suit land for more than 12 years before the filing of the suit. 6. 5. According to the pleadings of the parties the main question which requires to be decided is with regard to the fact as to whether the defendants had established their right as an under raiyat by being in possession of the suit land for more than 12 years before the filing of the suit. 6. The learned Subordinate Judge on the basis of the evidence on the record found:- - (i) that in execution of the Thika deed, Exhibit 1 no fraud or undue influence was practised on defendant No. 1, (ii) that the matter relating to the title and possession over the suit land was in fact referred to Panches and under the award of the Panches, Exhibit 2 Tuna Mian remitted the arrears of Thika rent and he further paid a sum of Rs. 200.00 to defendant No. 1 as compensation for the sugar-cane crop standing over a portion of the suit land, (iii) Tuna Mian, the original plaintiff, had come in possession of the disputed land after the verdict of the Pan- ches (iv) that the defendants had failed to prove that they had been in continuous possession as under-raiyat over the suit land for a period of more than 12 years before the filing of the suit and that the plaintiffs were therefore entitled to recover khas possession of the suit land, the defendants being mere trespassers. On these findings the learned Subordinate Judge held that the plaintiffs were entitled to withdraw the sum of Rupees 1700.00 lying in deposit in respect of the sale value of the crops auction sold in the 145 proceeding and further held that the order passed by the Sub-Divisional Officer in Miscellaneous case No. 457 of 1957 dated 10th July, 1958 was illegal and unsustainable. The plaintiffs were also held to be entitled to recover mesne profit from 10th of July, 1958 till the date of recovery of possession the amount to be determined in a separate proceeding. The suit having been thus decreed these appeals have been filed here. It may be stated here that after the decree was passed some clerical errors regarding the correct area of the suit land under the particular Khatas was detected and consequently the plaintiffs prayed for an amendment of the decree. The amendment was allowed. Against such amendment, as stated above, First Appeal No. 383 of 1965 has been filed. 7. Mr. It may be stated here that after the decree was passed some clerical errors regarding the correct area of the suit land under the particular Khatas was detected and consequently the plaintiffs prayed for an amendment of the decree. The amendment was allowed. Against such amendment, as stated above, First Appeal No. 383 of 1965 has been filed. 7. Mr. Shailesh Chandra Sinha, appearing for the defendants, did not dispute the decree and execution of the Thika deed, Exhibit T, by defendant No. 1. He, however, tried to explain the deed as one in commutation of the Bhauli rent into Nagdi rent. He further submitted that the plaintiffs case for recovery of possession of the suit land being based on an arbitration award, which was an unregistered document and had not been made a rule of the Court, the suit must fail. His further submission was that the defendants case of being in possession of the suit land for more than 12 years before the filing of the suit had been wrongly rejected by the court below and that on the evidence on the record it should be held that defendant No. 1 had in fact been in possession of the suit land as an under Raiyat since more than 12 years. These were the three contentions raised on behalf of the defendants-appellants . 8. Mr. Kailash Roy, appearing for the plaintiffs-respondents, by reference to Exhibit T the Thika deed, submitted that there, was no scope for the appellants argument that the said deed had been executed merely with a view to commute Bhauli rent into Nagdi rent. According to Mr. Roy, it was a settlement of the suit land by Tuna Mian with defendant No. 1 for a period of three years on a fixed annual rental and after the expiry of the said period of lease, the lessee was bound in terms of the said lease to vacate possession and. hand over the same to the les- sor. On the question as to whether the suit was based on the arbitration award, Mr. Roy referred to the plaint itself and submitted that the basis of the suit was cot the award at all. There was no prayer for a decree in terms of the award. The decree had been sought on the grounds of title and possession of the plaintiffs over the suit land. Roy referred to the plaint itself and submitted that the basis of the suit was cot the award at all. There was no prayer for a decree in terms of the award. The decree had been sought on the grounds of title and possession of the plaintiffs over the suit land. It was, therefore, submitted that there could be no question of the failure of the suit on the ground that the arbitration award was an unregistered document and had not been made a rule of the Court. Relying to the other part of Mr. Sinhas submission, Mr. Roy submitted that the admitted case of the defendants being that they claimed their title as under-raiyat under the plaintiff and by being in possession as such for a period of more than 12 years, the onus lay upon the defendants to prove such possession for such period of time and that the defendants had failed to prove it. As such the plaintiffs were entitled to recover possession of the suit land. On these grounds it was urged that the appeals be dismissed. 9. In my opinion, the appeals have to be dismissed. The points which need to be decided first is whether the defendants had proved their possession over the suit land as under raiyat for a period of more than 12 years before the filing of the suit. According to the defendants they had been in cultivating possession of the suit land since the year 1941. This part of the defendants case is completely unacceptable in view of what is stated in Exhibit 1, the Thika deed. This deed, as stated earlier, was executed by defendant No. 1 in favour of Tuna Mian, the original plaintiff. The nature of the document was described as "Thikabandi". The lands settled under the said deed were the same, which are the suit lands. This deed, as stated earlier, was executed by defendant No. 1 in favour of Tuna Mian, the original plaintiff. The nature of the document was described as "Thikabandi". The lands settled under the said deed were the same, which are the suit lands. The recital in the document starts with the following sentences:- - "I the executant, in a sound state of my body and mind, in full enjoyment of my senses, without illegal pressure and coercion by anybody else, of my own accord and free will, solemnly declare and put in writing that I have taken in settlement on bhaoli thikabandi 7 acres and 71 decimals of land mentioned in column No. 5 above from the claimant for a term of three years beginning from 1-360 Fasli to the month of jeth 1363 Fasli." The further recital which is also equally important reads as under-- "That I, the executant, declare and put to pen that after the expiry of the term, the said claimant (Tuna Mian) will be free to oust or dispossess me, the executant and will take back the land settled and he may either settle the same with other person or keep the same in his khas possession. I, the executant, neither have nor shall have any plea or objection against this." (The words within bracket Tuna Mian are mine) 10. Defendant No. 1, who has examined himself as witness No. 14 stated that -- "I went to Colgong 2 or 3 days after the registration of the Thika deed. I did not get the deed written out......" This statement of defendant No. 1 implies that he was under some sort of a misrepresentation regarding the contents of the Thika deed and that he in good faith had given his thumb mark on the said Thika deed. Firstly this part of his statement cannot be accepted in view of his declaration in the Thika deed, which is a registered document, that he had executed the said deed without any pressure or coercion and in sound state of his mind and body and in full enjoyment of his senses. Exhibit "4B" which is the deposition of Jageshwar Man-dal, defendant No. 1 when the suit was proceeding in the Court of the Munsif, also shows that the. Thika deed was read over and explained to defendant No. 1. Exhibit "4B" which is the deposition of Jageshwar Man-dal, defendant No. 1 when the suit was proceeding in the Court of the Munsif, also shows that the. Thika deed was read over and explained to defendant No. 1. He stated there "the deed was read over to him before execution. At that time I learnt that the Thika was for three years". And secondly, even factually this statement cannot be accepted as correct because the scribe of Exhibit ! Tarai Pd. Lal, who has been examined as plaintiffs witness No. 10, stated in his cross-examination that ". . . . Ramdayal Singh, who had signed for Jugeshwar was present when I had read over the deed. He identified him also. It is not a fact that the deed was not read over to Jugeshwar Mandal." The said Tarni Pd. Lal was the scribe of the deed is proved by the aforesaid Exhibit 4B. 11 Thus in face of the recitals in exhibit 1 the defendants case of being in possession of the suit land as an under-raiyat since the year 1941 is proved as completely false. Mr. Sinha, as stated earlier, tried to explain the purpose behind Exhibit 1, as a document indicating the computation of rent from Bhowli to Nagdi in respect of the suit land. In support of his argument he has referred to the following recital-- "That, I, the executant, promise and reduce to writing that I will produce different crops such as Bhadai, agahani, baisakhi and Patsan and will pay in all price amounting to Rs. 800.00 (Eight hundred) yearly in lieu of all the produces as per instalments to the aforesaid claimant...." To me it appears that the recital does not at all support Mr. Sinhas contention. It does not show that by this document the rent of the suit land was being commuted from Bhowli to Nagdi. The aforesaid recital, according to me, shows that in fixing annual rent for the thika, the yardstick was the produce of the said land and nothing more. I will therefore, once again reiterate my opinion that the defendants case of being in possession of the suit land as under-raiyat since the year 1941 is completely belied by the recitals in Exhibit T. 12. It was next contended by Mr. I will therefore, once again reiterate my opinion that the defendants case of being in possession of the suit land as under-raiyat since the year 1941 is completely belied by the recitals in Exhibit T. 12. It was next contended by Mr. Sinha that for want of registration of the arbitration award, which was admittedly on a plain paper and was not made rule of the Court, the suit should fail because according to him the suit was based upon that award. The award is Exhibit 2 and is on a plain paper. If such an award was made the basis of the suit, no doubt Mr. Sinhas contention would have prevailed, but obviously the argument raised is based upon a misappreciation of the basis of the suit. In the plaint there is no doubt a mention of the fact that the parties tried to settle their differences through arbitration and that the arbitrators gave an award, as a result of which the plaintiffs forwent the arrears of rent due against the defendants and further, the former paid to the latter a sum of Rs. 200.00 towards the price of the standing sugarcane crops. This statement is, however, a mere recital of the events leading to the filing of the suit. No relief is sought on the basis of the award nor is the award sought to be enforced through the suit. It was a document produced as an evidence showing that on receiving Rs. 200.00 from the plaintiff the defendants gave up possession of the Thika land and the plaintiffs entered possession thereof. The learned Subordinate Judge has relied upon a decision of the Supreme Court in Kashinathsa Yamosa Kabadi, etc. and Narsingsa Bhaskarsa Kabadi, (1961) 2 SCA 542 = ( AIR 1961 SC 1077 ), for the proposition that an award made in an arbitration out of court was accepted and acted upon voluntarily by the parties to the suit was a plea which could be taken in a suit and that "such a plea was not precluded by anything contained in the Arbitration Act even though the award may not have been filed in the Court". The relevant observations at page 554 of the report read as under:- - "... The relevant observations at page 554 of the report read as under:- - "... .It may be sufficient to observe that where an award made in arbitration out of court is accepted by the parties and it is acted upon voluntarily and a suit is thereafter sought to be filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute, and that the agreement and the subsequent actings of the parties are binding. By setting up a defence in the present case that there has been a division of the property and the parties have entered into possession of the properties allotted, defendant No. 1 is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set up a plea that the property was divided by consent of parties. Such a plea is in our judgment not precluded by anything contained in the Arbitration Act. The records made by the Panches about the division of the properties, it is true, were not stamped nor were they registered. It is, however, clear that if the record made by the Panches in so far as it deals with immoveable properties is regarded as a non-testamentary instrument purporting or operating to create, declare, assign, limit or extinguish any right, title or interest in immoveable property, it was compulsorily registrable under Sec. 17 of the Registration Act, and would not in the absence of registration be admissible in evidence. But in our judgment, the true effect of what are called awards is not by their own force to create any interest in immoveable property; they recorded divisions already made and on the facts proved in this case, their validity depends upon the acceptance by the parties. The records made by the Panches were documents which merely acknowledged partitions already made and were not by law required to be registered....". The records made by the Panches were documents which merely acknowledged partitions already made and were not by law required to be registered....". It is true that in the above case the arbitration award was produced as a defence by one of the defendants against the suit for partition of family properties and in the case with which I am concerned here, it is the plaintiff who wants to take the aid of the arbitration award, but the principle laid down by their Lordships of the Supreme Court regarding the purpose behind producing the award, as an evidence in support of the plaintiffs case, will apply equally to it. I am, therefore, of the opinion that the opinion expressed by the learned Subordinate Judge on this issue is valid and the argument for dismissal of the suit on the aforesaid plea cannot be accepted. Mr. Sinha then referred to relief (a) of the plaint which was to the effect that "for an adjudication that the defendant No. 1 on remission of arrears of thika rent and also on accepting Rs. 200.00 in cash from the plaintiffs father gave up possession of the land in suit to the plaintiffs father who entered in possession thereof and grew crop on the same and also constructed a Basa on the same, ceased to have any interest, right, title or possession over the land". According to Mr. Sinha this relief was clearly based on the award itself. I do not see any merit in this point at all. This relief, based upon the title to the plaintiff of the suit land and averments to the effect that Rs. 200.00 was accepted in cash by defendant from the plaintiff for giving up possession of the land, was merely a statement of fact that the award having been acted upon by the parties, the defendants should be held to nave accepted the plaintiffs right, title and interest over the suit lands. I cannot stretch the said relief as to mean that the plaintiffs wanted the award to be enforced as such or for the passing of the decree in terms of the award itself. 13. I cannot stretch the said relief as to mean that the plaintiffs wanted the award to be enforced as such or for the passing of the decree in terms of the award itself. 13. Learned counsel for the appellants then cited a decision of the Supreme Court in the case of Satish Kumar V/s. Surinder Kumar, AIR 1970 SC 833 and his argument is that once there is an award by arbitrators settling the rights of the parties" in an immoveable property worth Rs. 100/~ that award could be the only basis for a claim in respect of that property and if the award was unregistered and not made a rule of the court the claim must be dismissed. If I have understood Mr. Sinhas argument, in other words it means that if there was an arbitration award in respect of a property worth Rs. 100.00 or above, the award must be the only basis on which the parties to the arbitration award could go to the Court in respect of that property. I have not been able to find any connection between the decision cited and the argument sought to be built upon it. The point in issue before their Lordships of the Supreme Court in the abovementioned case was whether an award given under the Arbitration Act on a private reference i.e., without intervention of the court require registration under Sec.17 (1) (b) of the Registration Act if the award effected the partition of immoveable property exceeding the value of Rs. 100.00 Their Lordships answered the question in the affirmative. Hegde, J. while agreeing with the judgment further observed that "It was one thing to say that a right was not created under the award and it was entirely a different thing to say tbat the right created could not be enforced without further steps". Further his Lordship observed that a document validly created rights but those rights may not be enforced for various reasons. This decision is obviously not on the proposition as propounded by learned counsel for the appellants. Moreover on the facts of the case where both the parties to the litigation gave a go by to the arbitration award, the court cannot insist that the parties must claim a declaration of their rights only in terms of the said award. This decision is obviously not on the proposition as propounded by learned counsel for the appellants. Moreover on the facts of the case where both the parties to the litigation gave a go by to the arbitration award, the court cannot insist that the parties must claim a declaration of their rights only in terms of the said award. I am, therefore, of the opinion that the suit cannot fail on the ground as urged by Mr. Sinha. 14. The last part of Mr. Sinhas contention was that on the basis of the evidence on the record the defendants must be held to have proved that they were in possession of the suit land since 1941 or at least for a period over 12 years since the filing of the suit. He has not disputed the legal position that the onus will lie upon the defendants to prove their possession so as to bar the plaintiffs title over the suit land. It may be stated here that the defendants have no documentary evidence regarding such a claim. Their main reliance is only on the oral testimony of their witnesses. 15. In support of the contention that the defendants have been in possession over the disputed land, a reference was made to the evidence of P.W. 1 who was one of the Panches. He had stated in his examination-in-chief that Jageshwar Mandal, i.e., defendant No. 1 had cultivated about 1 bigha out of the disputed land prior to the registered Thika. Even in his cross-examination the said witness reiterated the statement that Jugeshwar Mandal used to cultivate a plot of one bigha even prior to the registered Thika. Now this statement does not show continuity of possession of defendant No. 1 over the suit land. All that it shows is that at some point of time defendant No. 1 used to cultivate a portion of the land in dispute. Reference was also made to the evidence of P.W. 3 who had stated that Jugeshwar Mandal was cultivating the disputed land since 10 or 11 years. Learned counsel for the defendant placed great reliance upon the statement. Reference was also made to the evidence of P.W. 3 who had stated that Jugeshwar Mandal was cultivating the disputed land since 10 or 11 years. Learned counsel for the defendant placed great reliance upon the statement. I, however, find that the statement does not make anything more than this that defendant No. 1 was cultivating the disputed land since the year 1953; 10 or 11 years counted from the date on which this witness was deposing relates back to the year 1953, which was the year when Thika of the disputed land was given by Tuna Mian to defendant No. 1. In any event this statement does not prove possession of the suit land for more than 12 years so as to bar the plaintiffs title for recovery of possession over the land. The defendants have examined in all fourteen witnesses, of whom witness No. 1 Baikunth Pd. Mandal is brother-in law (Jageshwar Mandals wifes brother) of Jageshwar Mandal, defendant No. 1. He admitted in cross-examination that defendant No. 1 had taken the suit land in thika from Tuna Mian and that the Thika was for three years. His evidence, therefore, contrary to supporting the defendants case supports the plaintiffs case. Witness No. 2 was a toll collector of Colgong Ghat. His statement is merely a general one which cannot be taken up upon its face value without any corroborative evidence to support it. Witness No. 3 seems to be a chance witness than a person having definite knowledge about the possession of the defendants over the disputed land. He is a person from a neighbouring village and is even unable to give complete boundary of the suit land. Similar is the position with regard to witness No. 4. Witness No. 5 is one of the close relations of defendant No. 1 and his evidence supports the plaintiffs case rather than the defendants case, inasmuch as he stated about taking of the thika by defendant No. 1 from Tuna Mian. Defendants witness No- 6 admitted in his cross-examination that defendant No. 1 gave up possession of the disputed land for six months after the Panchayati. His evidence supports the plaintiffs case rather than the defendants-He is a man of the village of the defendants. Defendants witness No- 6 admitted in his cross-examination that defendant No. 1 gave up possession of the disputed land for six months after the Panchayati. His evidence supports the plaintiffs case rather than the defendants-He is a man of the village of the defendants. Learned counsel for the appellants submitted that the absence of possession of Jageshwar Mandal over the disputed land lor six months was only during the period when crops were grown on it and the auction-purchaser of the crops was in possession of the land. According to the learned counsel for the appellants this statement ought not to mean interruption in the defendants possession over the disputed land. 16. The question I am considering is not a narrow question of interruption or break in possession of the defendants over the disputed land but what I am trying to find out is whether on the evidence on the record the defendants have proved their possession over the disputed land for twelve years continuously. The evidence of P. W. 6, however, does not support such a plea of the defendant. Defendants witness No. 7 Musher Mandal was one of the Panches in the dispute between Tuna Mian and Jageshwar Mandal. In his cross-examination he admitted that the disputed land had been given on Thika to Jageshwar Mandal on annual rent. A dispute between them arose because Jageshwar Mandal did not give up possession after the expiry of the Thika. This evidence does not support the defendants case of continuous possession of the suit land for more than twelve years, rather it supports the plaintiffs case that title and possession over the disputed land were with the plaintiffs who gave it on thika to Jageshwar, the Thika being for the period of three years. Defendants witness No. 8 is a witness more on the question of Pancha-yati than the question of possession of the defendants on the disputed land. Although he states that Jageshwar Mandal was in cultivating possession of the suit land since four or five years, he admits on the other hand that he had learnt about the Thika of the land having been given to Jageshwar. Besides, his evidence is not of value regarding the point in issue namely, relating to possession of the defendants over the suit land. He is a close relation of defendant Jageshwar Mandal. Besides, his evidence is not of value regarding the point in issue namely, relating to possession of the defendants over the suit land. He is a close relation of defendant Jageshwar Mandal. Then there is the evidence of witness No. 9 who says that he used to cultivate a portion of the disputed land as a Bhumi- dar and that after him Jageshwar Mandal used to cultivate it. This witness had been prosecuted under Sec.110 of the Code of Criminal Procedure just a few years ago- He was prosecuted under Section 107 of the Code of Criminal Procedure also. There were in all 36 criminal cases against him. It is difficult to rely upon the testimony of such a person. Witness No. 10 is a Chawkidar of the village Salimpur. He supports Jageshwar Mandals cultivating possession over the suit land since 10 or 11 years only, which again calculated with reference to the date on which he was deposing would date back to the year 1953. He does not, therefore, support the defendants case of being in possession of the suit land for more than 12 years. It is not necessary to deal with the evidence of the other witnesses because they are more or less of the same nature, as I have discussed aboVe. Witness No. 14 is defendant No. 1 himself, whose evidence is that he had no paper to prove his possession over the disputed land. He further admits that Tuna Mian had told him before the expiry of three years of the Thika to give up possession of the land. 17. Now, therefore, in the absence of documentary evidence to support the defendants plea of possession over the disputed land for more than twelve years and in the absence of any reliable oral evidence, it cannot but be held that the defendants had failed to prove their possession over the disputed land for more than twelve years before the filing of the suit. As a matter of fact, there is no answer to the recital in Ext. 1, namely, the Thika deed under which Jageshwar Mandal agreed to be ousted and dispossessed from the Thika land after the expiry of the period of Thika. I have already quoted the said recital from Ext. 1 and, therefore, I need not quote it once again here. 18. 1, namely, the Thika deed under which Jageshwar Mandal agreed to be ousted and dispossessed from the Thika land after the expiry of the period of Thika. I have already quoted the said recital from Ext. 1 and, therefore, I need not quote it once again here. 18. I have not been addressed as to how the amendment to the original decree was bad or how it was sought to be avoided, 19. I do not find any merit in either of these two appeals which are accordingly dismissed with costs. Shambhu Prasad Singh, J. 20 I agree that on the evidence on the record, it is not possible to hold that defendants were in continuous possession over the suit land for more than twelve years and that the suit is not based on the Award. The appeals must, therefore, fail and be dismissed with costs.