Abdul Ali and others v. Harija Bibi — 1972 DIGILAW 5 (GAU)

Judgement JUDGMENT:- This second appeal by the plaintiffs is directed against the decree of Shri S. Haque, the Assistant District Judge, Cachar, Silchar, Shri Haque accepted the appeal of the defendant Harija Bibi against the decree of the trial court on reversing the finding of the latter that the plaintiffs-respondents had proved their prescriptive title to the land in dispute, and in consequence dismissed their suit with costs. 2. The case of the plaintiffs was that Ahmed Ali was the original owner of the land in dispute, that he (Ahmed Ali) sold a part of the land in dispute to plaintiffs Nos.1, 2 and 3 and Jowed Ali, the father of plaintiff No.4 and the husband of plaintiff No.5 by a registered sale deed Ex.5, dated 16-2-1935, and that thereafter he sold the balance of the land in dispute to the same vendees per registered sale deed Ex.7, dated 17-10-1938. Ever since the date of purchase, the Plaintiffs alleged, they had been in possession of the land without any disturbance. The right and interest of Jowed Ali in the land was inherited by plaintiffs Nos.4 and 5 on his death. During the survey carried out in the latest settlement, the entire land in dispute was entered in the names of the plaintiffs on the basis of their possession. However, the defendant Harija Bibi raised a dispute respecting that entry and the Settlement Officer, Karimganj, declared Harija Bibi as the owner and in possession of the land. Since the order made by the Settlement Officer and the consequent entries in the revenue records in the name of Harija Bibi had clouded the rights of the plaintiffs in the land in dispute, they filed the suit, giving rise to this appeal, claiming a declaration of their ownership of and khas possession over that land. 3. Harija Bibi contested the suit on the footing that she had purchased the land from her husband Ahmed Ali per registered sale deed Ex.A, dated 26-6-1932. She denied, on the strength of that sale deed, that her husband had any right to make a transfer of the same land to the plaintiffs in the years 1935 and 1938. She also contested the claim of the plaintiffs that they had been in possession of the land since the dates of their alleged purchases. 4. She denied, on the strength of that sale deed, that her husband had any right to make a transfer of the same land to the plaintiffs in the years 1935 and 1938. She also contested the claim of the plaintiffs that they had been in possession of the land since the dates of their alleged purchases. 4. The trial court found that the sale deed Ex.A in favour of the defendant is a genuine document, that though the sale deeds secured by the plaintiffs had also been executed by Ahmed Ali and duly registered they could not prevail against the one executed by Ahmed Ali in favour of his wife, the latter being of earlier date, and that as such the plaintiffs could not claim right to the land on the basis of the sale deeds propounded by them. However, that court reached the conclusion that the plaintiffs had been in possession of the land in dispute for the last 28 years and that since their possession was adverse to the title held by the defendant in that land, the plaintiffs had become owners of the land by adverse possession which had continued for more than 12 years before the institution of the suit. On the basis of this latter finding, the trial court decreed the suit of the plaintiffs. 5. The learned Assistant District Judge held, while allowing the appeal against the decree of the trial court, that the plea of adverse possession had not been taken by the plaintiffs in the plaint and so they could not have availed of the same, that since the plaintiffs had been in possession of the land on their own showing on the basis of the title acquired by them from Ahmed Ali they could not lay claim to it on the strength of prescriptive possession for the statutory period, and that the plaintiffs had also not been able to establish their possession for that period. 6. 6. Shri N.M. Dam urged for the plaintiffs-appellants that the claim of adverse possession raises a question of law which he is entitled to urge in second appeal, that at any rate the Assistant District Judge did not record an unambiguous finding that the plaintiffs had failed to establish their prescriptive title and so the matter admits of consideration at the hands of this Court, that the trial court had gone wrong in holding that the plea of adverse possession had not been taken in the plaint, and that the evidence on the record, when considered cumulatively, leaves no scope for doubt that the plaintiffs had been in adverse possession of the land for more than 12 years. Shri Dam submitted further that the Assistant District Judge had not taken into consideration the whole of the evidence on the record before recording the finding that the claim of adverse possession could not be sustained and so it is open to this Court to re-appreciate the entire data and reach its own conclusions. Shri Mazumdar urged for the defendant-respondent that even if the plea of adverse possession can be said to be a question of law. the findings of fact on which the first appellate court had negatived the claim of adverse possession are not open to challenge in this Court. He cited the decision in Deity Pattabhiramaswami v. S. Hanymayya, AIR 1959 SC 57 , in support of the contention that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. 7. There is no dispute on the point that Sections 100 and 101 of the Civil P.C. between themselves do not visualise a second appeal on a point of fact. However, it is equally well settled that a finding of fact which is final must be clear, specific and unambiguous. The Supreme Court held in the case of Raruha Singh v. Achal Singh, AIR 1961 SC 1097 , that if the appellate court records definite findings on the basis of oral evidence and surrounding circumstances, it is not open to the High Court to re-appreciate that evidence. It follows that unless the finding is clear cut and definite, the aggrieved party can reagitate in the High Court a finding of fact given by the first appellate court. It follows that unless the finding is clear cut and definite, the aggrieved party can reagitate in the High Court a finding of fact given by the first appellate court. Another equally well-settled principle is that if the first appellate court has failed to consider the entirety of the relevant evidence before recording a finding of fact, or, in other words, if any such evidence has been left out of consideration by it, then the point can be agitated in second appeal. It is in the light of these principles that I proceed to determine if the findings of fact reached by the Assistant District Judge suffer from any infirmities. 8. The principal question that arose for decision before that court was whether the plaintiffs had been in occupation of the land for more than 12 years adversely to the defendant. After discussing the evidence led by the parties, the Assistant District Judge recorded the following findings:- "So from the evidence of the P.Ws. there was reason to believe that the plaintiffs had long possession of more than the period of limitation. The evidences in record do disclose since how long they were possessing. And considering the evidence of the P.Ws. it was doubtful if they were possessing the suit land". Since the reproduced part of the judgment did not apparently make a convincing reading I called upon the parties counsel to check it up with the original judgment of the court and after checking the same both of them agreed that the copy of the relevant part of the judgment set out in the Paper Book is correct. The first and third sentence of the excerpt obviously convey contrary impressions. In the first sentence it is stated that the evidence on record shows that the plaintiffs had been in possession of the land for more than the period of limitation, while in the third sentence it is mentioned that after considering the evidence of the witnesses it was doubtful that the plaintiffs were possessing the suit land. The middling sentence is altogether incomprehensible. Therefore, it cannot be contended that the learned Assistant District Judge had reached any firm finding about possession of the plaintiffs over the suit land or its length. In such circumstances, it is definitely open to the plaintiffs-appellants to submit that this Court should reassess the evidence and reach definite conclusions of its own. 9. Therefore, it cannot be contended that the learned Assistant District Judge had reached any firm finding about possession of the plaintiffs over the suit land or its length. In such circumstances, it is definitely open to the plaintiffs-appellants to submit that this Court should reassess the evidence and reach definite conclusions of its own. 9. Quite a number of witnesses examined by the plaintiffs had produced certain sale deeds on the basis of which they had purchased lands contiguous to the land in dispute, and in those sale deeds the land in dispute, wherever it adjoins the purchased lands, has been entered as ownership of the plaintiffs. The trial court placed those documents entirely out of consideration on the score that they were irrelevant. However, those documents are clearly relevant in terms of Section 13 of the Evidence Act, especially when the Court statements of the witnesses who produced them are corroborated by the recitals therein. That section enacts that where the question is as to the existence of the right or custom, the following facts are relevant:- (a) Any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; (b) Particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from. It is settled beyond controversy that the expression "right" in Section 13 includes a private land. Therefore the learned Assistant District Judge was wrong in law in not taking the various sale deeds produced by the plaintiffs witnesses into consideration. The recitals made therein lend corroboration to the oral statements of the witnesses in Court and so are clearly admissible in terms of Section 157 of the Evidence Act. The question bearing on the value to be attached to such recitals will depend on the circumstances under which the document came into existence but that fact has nothing to do with the relevancy of the documents. 10. The learned Assistant District Judge rejected another set of documents as of no evidentiary value. They are Exs.8 and 9 and Ex.10 series. The first mentioned two documents are the sale deeds by which Ahmed Ali had purchased the land in dispute. 10. The learned Assistant District Judge rejected another set of documents as of no evidentiary value. They are Exs.8 and 9 and Ex.10 series. The first mentioned two documents are the sale deeds by which Ahmed Ali had purchased the land in dispute. It is the case of the plaintiff-appellant that at the time of sale of the two parcels of the land in dispute to him, Ahmed Ali had delivered these two documents to him in token of the assurance that he was the owner of the land, Ex.10 series are the receipts which the plaintiff had secured on payment of rent respecting the land in dispute. The receipts show that he had been paying rent from 1341 B.S. upto 1368 B.S. If the plaintiff were not in possession of the land, I wonder if he could have continued to pay rents for more than a quarter of a century and yet not assert his right of possession. The learned Assistant District Judge disposed of the argument pressed on behalf of the appellant on the authority of the three documents Ex.8, Ex.9 and Ex.10 series with the observations that the payment of revenue and custody of the old title does "neither give title nor prove adverse possession" and that "Certainly the plaintiffs might have paid revenue as they took themselves as real owners by purchase from Ahmed, so these acts of paying were not denial of title of defendant to the knowledge of the defendant, but these were paid to strengthen their title got by purchase". I have not been able to appreciate the approach of the learned Judge. The defendant, I may emphasise, could not deny during the course of her examination as D.W.5 that so long her husband Ahmed Ali was alive, it was he who was managing the property. In the context of this circumstance, namely, that it was Ahmed Ali who managed the property even after the transfer in favour of his wife, the passing of the documents Ex.8 and Ex.9 by Ahmed Ali to the plaintiff assumes considerable importance. Ahmed Ali obviously represented to the plaintiff that as he was the owner of the land on the basis of the deeds Ex.8 and Ex.9 and in possession of it he was fully competent to transfer the same. Ahmed Ali obviously represented to the plaintiff that as he was the owner of the land on the basis of the deeds Ex.8 and Ex.9 and in possession of it he was fully competent to transfer the same. This conclusion is reinforced by the fact that the plaintiff paid land revenue for about 27 years after the purchase by him firstly in the year 1935 and then in the year 1938. 11. If the learned Assistant District Judge had taken into consideration the documents Ex.8, Exs.9 and 10 series as also various sale deeds produced by the plaintiffs witnesses, he would surely have taken the oral evidence led by the plaintiff in an altogether different light I think he was greatly prejudiced by the fact that the plaintiff had, at the best, been in occupation on the basis of his own title and so he had never asserted adverse possession against the defendant. However, if the plaintiff was in possession of the land on the basis of his own title, then his possession would definitely be adverse to the claim of the defendant Harija Bibi. But for this basic wrong legal approach, the fate of the appeal decided by the Assistant District Judge would have been altogether different. 12. Plaintiff examined 7 witnesses besides himself. All of them supported his claim of continuous possession over the land in dispute for 28 years or upwards. P.W.2 Abdul Jalil is the owner of the land on the adjacent west of the land in dispute, while Taher Ali P.W.3 owns land on the contiguous north of the suit land. Their ownerships on the west and north were admitted by D.W.1, the son of the defendant, Abdul Jalil and Taher Ali unanimously deposed that the plaintiff has been in possession of the land for 28 to 31 years. P.W.6 Ahmed Ali also owns land on the north and south of the land in dispute and he too has lent unqualified support to the plaintiffs stand that the latter has been in occupation for more than 28 years. Amruj Ali P.W.7, who owns land on the north, also affirmed that the plaintiff has been in possession of the suit land for a long time. Likewise is the case with the P.W.8 Osman Ali. 13. The defendants evidence about her possession is far from convincing. D.W.1 is her own son while D.W.5 is the defendant herself. Amruj Ali P.W.7, who owns land on the north, also affirmed that the plaintiff has been in possession of the suit land for a long time. Likewise is the case with the P.W.8 Osman Ali. 13. The defendants evidence about her possession is far from convincing. D.W.1 is her own son while D.W.5 is the defendant herself. They both admitted that they had never cultivated the land themselves. Their case is that they had been getting it cultivated through bhagidars or labourers. D.W.2 Abdul Oaheb describes himself as a bhagidar of the defendant respecting the suit land for a period of 4 years and that was 12 years after one Yakub Ali had been in possession of the land. Abdul Oaheb however could produce no bhaginama. The trial court disbelieved him on the score that the witness could not explain why he paid half the paddy, representing the share of the defendant, to Yakub Ali and in addition he happens to be related to the son of the defendant. Irshad Ali D.W.3 deposed that he had cultivated the land for 3 or 4 years as a labourer under D.W.1. Since the witness admitted that he had been convicted in one criminal case and as he happens to be a mere labourer, the trial court did not put reliance on his testimony. Rashid Ali D.W.4 is another labourer and he happens to be the brother of D.W.3. The statement of this witness was in contradiction to what had been earlier deposed by D.W.1 and so the court disbelieved him. The defendants statement as D.W.5; the trial court held, stood belied by the testimony of D.W.2 inasmuch as the former said that Yakub Ali had never cultivated the land in suit, but the latter affirmed that Yakub Ali done cultivation for about 12 years. The reason given by the trial court for disbelieving D.W.5 is therefore obviously sound. 14. It would be apparent from the above discussion of the oral evidence that the witnesses examined on behalf of the plaintiffs are natural and independent while those examined by the defendant are either interested or their testimony is uninspiring. The reason given by the trial court for disbelieving D.W.5 is therefore obviously sound. 14. It would be apparent from the above discussion of the oral evidence that the witnesses examined on behalf of the plaintiffs are natural and independent while those examined by the defendant are either interested or their testimony is uninspiring. Therefore I set aside the finding of the Assistant District Judge that the plaintiff had not been in continuous possession of the land for a period of 28 to 30 years and hold that the plaintiff has succeeded in establishing that he had been in possession for that much period. 15. Before concluding I must make a brief reference to a point raised by Shri Mazumdar on behalf of the respondent. He submitted that the plaintiff had not pleaded adverse possesion in the plaint and so he cannot succeed on the basis of prescriptive title. In support of that contention, the learned counsel placed reliance on the decision in Sinha Ramanuja v. Ranga Ramanuja, AIR 1961 SC 1720 . The relevant proposition laid by the Supreme Court in that case was that where in the courts below the plaintiff did not base his claim on his being the holder of the office of "arulipad", the High Court was not justified in allowing the plaintiff to set up any such claim for the first time in second appeal. The proposition is quite unexceptionable. However, the judgments of the two courts below show unambiguously that the present suit was fought out both in the trial court and in the first appellate court distinctly on the ground of title based on purchase or in the alternative on adverse possession for the statutory period. While opening discussion on issue No.6, the trial court observed that the plaintiffs case rests on the two sale deeds executed by Ahmed Ali and on long possession since the dates of purchase. The court immediately thereafter recorded the finding that the sale deeds Exts.5 and 7 produced by the plaintiff could not prevail against the sale deed Ex.A in favour of the defendant and then observed that "The plaintiffs also pleaded the adverse possession for more than the requisite period". The court thereafter proceeded to examine the evidence to find out if the plaintiffs claim had been established. The court thereafter proceeded to examine the evidence to find out if the plaintiffs claim had been established. The finding reached by that court after an elaborate examination of the evidence, oral and documentary, was that the plaintiff had perfected his title over the suit land by adverse possession lasting for the statutory period. It is this latter finding of the trial court which was subjected to scrutiny in the first appellate court and the latter court negatived the claim of adverse possession. Therefore it cannot be said that the parties did not fight the case in the courts below on the basis of adverse possession set up by the plaintiff. Further, a close study of the plaint would show that the plea of adverse possession had actually been adopted by the plaintiff. In para 4 of the plaint it had been stated that the plaintiff had been "possessors of the suit land for more than the period of limitation to the knowledge of the defendant", and in para 8 it was asserted that the plaintiffs be granted a declaration of ownership as "they have been enjoying for more than the period of limitation and against adverse possession by others". It may be that the plaintiff could have laid claim to the land on, the basis of adverse possession in more explicit terms than he actually did. However, it cannot be said, in the context of the excerpted parts of the plaint, that the plaintiff had not claimed ownership founded on adverse possession. Moreover, as already shown above, the two parties did fight out the case on the basis of adverse possession and the trial court as well as the first appellate court dealt with that claim exhaustively and that too without any objection on the part of the defendant. Hence I negative the contention of Shri Mazumdar that the plaintiff cannot lay claim to the land on the basis of adverse possession. 16. No other point was raised by the parties counsel. 17. In the result, I allow the appeal set aside the decree of the first appellate court and restore the one made by the trial court. The plaintiffs-appellants shall set costs in all the three courts. Appeal allowed.