Baidya Nath Banerjee v. Nihar Kumar Aditya — 1978 DIGILAW 105 (CAL)

JUDGMENT 1. The present appellants as plaintiffs instituted a suit against the respondents for declaration of their title to and for recovery of possession of Plot Nos. 3654 and 3669, Khatian No. 479, Mouza Belgharia and for mesne profits. They also prayed for recovery of Rs. 442/- against the defendant No.1, Nihar Kumar Aditya, who had been awarded the said sum as compensation by the Government for requisitioning of the suit plots under the Defence of India Rules, 1939. The defendant No. 1, Nihar Kumar Aditya and the defendant No. 1 (ka) filed two written statements contesting the plaintiffs claim. The learned Subordinate Judge, 5th Court, Alipore had decreed the said suit against the defendants except against the defendant No. 2(ka). He ordered that the plaintiffs title to the suit property be declared and that they would get khas possession by evicting the defendants. The plaintiffs would be entitled to recover mesne profits by filing a subsequent suit. The defendant No.1 being aggrieved by the said decision, had preferred an appeal. The learned Additional District Judge, 2nd Court, Alipore, dismissed the appeal of the defendant No. 1 and the cross-objection filed by the plaintiff-respondents. The defendant No.1, being aggrieved by the said decision, preferred a second appeal to this Court. 2. On 2ist March, 1958 Renupada Mukherjee and Binayak Nath Banerjee JJ. allowed the said appeal and set aside the judgment and decree of the lower appellate court and remanded the appeal to that court for a fresh bearing in the light of their observations and in accordance with law. New evidence, if any, might be adduced in the lower appellate court. The Division Bench held that Surendra and Nagendra, who were the predecessors-in interest of the plaintiffs, were the owners of the disputed plots. The plaintiffs, who were the heirs of Surendra, got 16 annas title to the disputed plots by partition with Nandalal, who had acquired the interest of Nagendra, unless it was found that the claim of the plaintiffs was barred by limitation. The Division Bench further held "in our judgment such a case is/governed by Article 142 of the Limitation Act and the onus lies on the plaintiff-respondents to prove their possession at some time within 12 years prior to the suit". The Division Bench further held "in our judgment such a case is/governed by Article 142 of the Limitation Act and the onus lies on the plaintiff-respondents to prove their possession at some time within 12 years prior to the suit". The Division Bench found that the proper article which applied to the present case was Article 142 of the Limitation Act and the courts below had committed errors of law on the question of limitation. The Court below was directed to find whether the plaintiffs had succeeded in showing that they were in possession of the suit land at any time within 12 years of the institution of the suit. If the finding on the said point was in the affirmation, the lower appellate court was directed to affirm the decree of the trial court. The trial court's decree was to be reversed if the finding of the lower appellate court was to the contrary. 3. After the aforesaid remand the learned Additional District Judge, 1st Court, Alipore, by his judgment has found that the plaintiffs had failed to prove that they were in possession at any time within 12 years before the institution of the present suit and the suit was hit by Article 142 of the Indian Limitation Act and therefore, the decree passed by the learned Subordinate Judge should be vacated and the suit be dismissed. Accordingly, the lower appellate court allowed the appeal of the defendant No. 1 and dismissed the suit brought by the plaintiffs. Thereafter, the plaintiffs have preferred this second appeal. 4. It is now concluded by a finding of fact that Surendra Banerjee and Nagendra Banerjee had Bramhattar Niskar title to the disputed Plot Nos. 3669 and 3654, Mouza Belgharia and the said two plots were recorded in their names in the C.S. Khatian No.479 which was published in the year 1931. It had been also found that the plaintiffs had acquired 8 annas share of Surendra by inheritance and Nagendra has sold his moiety share to one Nandalal Seth. Thereafter, as a result of the partition between Nandalal and the plaintiffs made on 12th March, 1953, the plaintiffs were exclusively allotted the disputed plots along with some other plots. It was also in evidence that in the records of the Kamarhati Municipality the names of Sarbeswar and Bipin were recorded. Thereafter, as a result of the partition between Nandalal and the plaintiffs made on 12th March, 1953, the plaintiffs were exclusively allotted the disputed plots along with some other plots. It was also in evidence that in the records of the Kamarhati Municipality the names of Sarbeswar and Bipin were recorded. The said Municipality had filed S.C.C. Suit No. 1094 or 1931 for recovery of arrears of municipal taxes for the period between 1st Quarter 1927 to 3rd quarter 1930-31 form Sarbeswer and Bipin and obtained a decree against them. Thereafter, the Municipality filed Money Execution Case No. 159 of 1937 for realising the said decretal dues form Sarbeswar and Bipin. On 12th July, 1937 Ramprasad Bania had auction purchased the said plots and some other plots in the said execution case for a sum of Rs. 200/-. On 10th November 1937 the auction purchaser, Ramprasad, through court had taken delivery of possession of the disputed plots. On 12th July, 1943 Ramprasad Bania sold the plots to Nihar Kumar Aditya, the defendant No. 1. In the year 1943/44 the Military Authorities had requisitioned the disputed plots under Rule 75A of the Defence of India Rules, 1939 and the Military Authorities had remained in possession for 3/4 years. On 12th August, 1947 after derequisitioning they had delivered possession of the disputed plots to the defendant No. 1, Nihar Kumar Aditya. The defendant No. 1 was also awarded compensation for the aforesaid requisition made under the Defence of India Rules. On 4th November, 1949 the plaintiffs instituted the suit out of which this second appeal arises. 5. The learned Additional District Judge after remand has correctly pointed out that the plaintiffs themselves in paragraph (4) of their plaint have averred that the cause of action for the suit arose on 10th November, 1937 when possession of the plots were delivered to Ramprasad Bania, the auction purchaser, in the aforesaid S.C.C. Execution Case against Sarbeswar and Bipin whereas the suit was filed on 8th November, 1949, i.e. short of 12 years by 3/4 days. Renpada Mukherjee and Binayak Nath Banerjee JJ. in their remand order have found that Article 142 of the Indian Limitation Act, 1908 applied in the instant case and the plaintiffs must prove that they were in possession of the suit lands at a time within 12 years before the institution of the suit. Renpada Mukherjee and Binayak Nath Banerjee JJ. in their remand order have found that Article 142 of the Indian Limitation Act, 1908 applied in the instant case and the plaintiffs must prove that they were in possession of the suit lands at a time within 12 years before the institution of the suit. Therefore, the plaintiff were bound to establish that they were in possession at least on 8th November, 1937, i.e. within 12 years before the institution of the suit. 6. The lower appellate court upon consideration of the evidence on record including the evidence adduced before it after remand has found as a fact that the plaintiffs did not possess the suit plots at any time within 12 years before the filing of the present suit. The above finding of the lower appellate court about possession is not vitiated by any error of law. Therefore, sitting in second appeal, I cannot interfere with the same. 7. Mr. P.N. Mitter, learned advocate for the appellants, has however submitted that the lower appellate courts finding on the issue of possession cannot be sustained because it had acted contrary to the findings made by this Court in its remand order, that the defendant had failed to rebut the presumption of the correctness of the. C.S. Khatian in question which recorded the names of Surendra and Nagendra as owners in possession of the disputed plots. According to Mr. Mitter when this court in the remand order found that the plaintiffs had title to the suit plots, their possession was also impliedly found. 8. In order to consider the above argument of Mr. Mitter, I may refer to certain portions of the judgment of the Division Bench in S.A. No. 3888 of 1954. Their Lordships in their said judgment had inter alia observed "all the entries appearing in the C.S. Records have presumptive value and the courts below have held that the presumption raised by the entries has not been rebutted by the defendant-appellant." Their Lordships were not inclined to interfere with the said finding and, therefore, they did not accept the submission made by the learned advocate for the defendant-appellants that Sarbeswar and Bipin through whom the defendant No.1 claimed had somehow acquired the title of Surendra and Nagendra. Their Lordships accordingly held that Surendra and Nagendra and not Sarbeswar and Bipin were the two owners of the disputed plots. Their Lordships accordingly held that Surendra and Nagendra and not Sarbeswar and Bipin were the two owners of the disputed plots. But the learned Judge, however, qualified their said, finding that the plaintiffs had got 16 annas title by observing "unless it is found that the claim of the plaintiff-respondents is barred by limitation." The Division Bench had also upheld the second contention urged by Mr. A. C. Gupta, learned Advocate appearing on behalf of the defendant-appellants that the question of limitation had not been properly decided. The Division Bench rejected the argument of Mr. Apurbadhan Mukherjee, the learned Advocate who had appeared on behalf of the plaintiff-respondents that the case was governed by Article 144 of the Limitation Act and that by virtue of the presumption' referred to in Illustration (d) of S.14 of the Indian Evidence Act, they must be deemed to have been in possession of the disputed lands at the material time and it was for the defendant No.1 to show when his possession or the possession of Ramprasad Bania had become adverse. The Division Bench held that the proper article which would be applicable to the present case was Article 142 and the plaintiff-respondents should have proved that they were in possession of the disputed lands at some time within 12 years prior to the institution of the present suit. 9. The decision of the Privy Council in Maharaja Sir Kesho Prasad Singh Bahadur v. Bahjogna Auer & Ors. AIR 1937 Privy Council 69, which was relied upon by Mr. Mitter, learned advocate for the appellants, cannot assist the case of the present plaintiffs. Sir George Rankin J. who delivered the opinion of the Privy Council in the said case pointed out the evidentiary value of the record of rights, Entries made in the government records are evidence of title mainly because they are good evidence of possession. But at the same time, Sri George Rankin J. was careful enough to point out that in case entries made were contrary to the facts as to possession at the time the said entries were made then they carry little, if any, weight. Further, Article 144 and not Article 142 was applicable to the case of Maharaja Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjona Kuer & Ors. Further, Article 144 and not Article 142 was applicable to the case of Maharaja Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjona Kuer & Ors. (supra) and Sri George Rankin, J. at page 78 of the reports observed "the circumstance that the Maharaja was not in possession or in receipt of not is, it need hardly be said, insufficient under Article 144 to warrant a finding of adverse possession on behalf of the respondents or their predecessor-in-title" and their Lordships declined to interfere with the finding of fact made by the Subordinate Judge in this respect. The present case before me was governed by Article 142 of the Limitation Act, 1908 and the burden of proof was upon the plaintiffs. As already stated the lower appellate court has found as a fact that the plaintiffs had no possession within 12 years before the institution of the present suit. Therefore, the above submission of Mr. Mitter fails. 10. Mr. Mitter has further submitted that the plaintiffs being true owners of the suit property the legal effect of the requisition of the suit property under Rule 75A(1) of the Defence of India Rules, 1939 was that such possession of the government had enured to the benefit of the plaintiffs. According to Mr. Mitter, the possession of the State during the requisitioning of the suit property had the same legal effect as possession of property by a Receiver appointed by Court or under attachment under S. 146 of the Criminal Procedure Code. 11. Mr. Mitter in support of his submission relied upon the decision of Sir Ashutosh Mookerjee and Panton, JJ. in Sarat Chandra Maity & Ors. v. Bibhabati Debi & Ors., 34 CLJ 302. Their Lordships at page 305 of the repots reiterated the view of this Court in Brajendra Kishore v. Abdul Rezac 22 CLJ 283 that when a property is attached under S.146 of the Criminal Procedure Code it passes into legal custody and during the continuance of attachment his possession in the eye of law was not interrupted. If on the other hand the wrong-doer was in possession at the time when the attachment took place, the effect of the attachment is to interrupt his possession and from the moment of attachment the possession of the rightful owner revived in the eye of law. If on the other hand the wrong-doer was in possession at the time when the attachment took place, the effect of the attachment is to interrupt his possession and from the moment of attachment the possession of the rightful owner revived in the eye of law. According to the learned Judges these results were deducible from the decision of Judicial Committee in Agency v. Short. (1888) 12 App. Cases. 793, Secretary of State for India v. Kristomani Gupta (1962) L.R. 29 IA 104 and Cumar Basanta Ray v. Secretary of State for India, (1917) 44 IA 104. 12. Mr. Mitter, learned advocate for the appellants, also relied upon the decision of the Privy Council in Rao Karan Singh v. Raja Bakar Ali Khan, LR 9 IA 99. The Privy Council held that in the said case that although under the old law of limitation a plaintiff must prove that he was in possession of the property in suit within 12 years before the suit, yet under Act IX of 1871 he may sue within twelve years from the time when the possession of the defendant, or some person through whom he claims became adverse to him. A Collector in possession of land for the purpose of protecting the government revenue, is bound to pay the surplus proceeds of the estate to the real owner, and his possession does not become adverse to the real owner by reason of paying such proceeds to an adverse claimant. A perusal of the decision in Rao Karan Singh v. Bakar Ali Khan (supra) would indicate that the basis of the said decision was that the Collector's possession was described as an attachment to collect rents from the raiyats and for paying revenue etc. The Collector was under a duty of paying the surplus to the true owner. Therefore, it was held that the Collector by paying over the money to Karan Singh did not give Karan Singh a title. 13. The same principle has been applied in respect of possession by a Receiver because a Receiver is-an officer of Court and is not a particular agent of any party to the suit and his possession is ultimately treated as possession of the successful party on the termination of the suit. 13. The same principle has been applied in respect of possession by a Receiver because a Receiver is-an officer of Court and is not a particular agent of any party to the suit and his possession is ultimately treated as possession of the successful party on the termination of the suit. But the said doctrine cannot be pushed to the extent of enabling a person who was initially out of possession to his subsequent adverse possession (see P. Laksmi Reddy v. Lakshmi Reddy, AIR 1957 SC 314 , paragraph 6). Their Lordships in P. Laksmi Reddy's case (supra) at page 319, paragraph 6 further observed the position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on successful termination of the suit in his favour. In such a case the question that would arise would be different viz. whether the interim possession of the Receiver would be a discontinuance or abandonment of possession or interruption of the adverse possession. We are not concerned with it in this case and express no opinion on it." 14. In the present case, the possession was taken by the Government in the exercise of its powers under Rule 76A(1) of the Defence of India Rules, 1939. Secondly, the Government took over possession from the predecessor-in-interest of the defendant No.1, paid recurring compensation to him and after de-requisitioning restored back possession to the defendant No.1. I am unable to accept the submission of Mr. Mitter that possession of the Government during the period the property had remained under requisition must be equated to possession in case of a property under attachment under S.146 or under Receiver's control. In case of attachment or Receivership, the property remains in custodia legis pending adjudication by the appropriate Court. 15. In my view, when the State in exercise of its power of requisitioning takes over possession it exercises its sovereign powers subject to the fulfilment of constitutional and statutory requirements. The State in respect of a requisitioned property is in no sense an agent of the true owner and such possession is nut on behalf of any particular person. 15. In my view, when the State in exercise of its power of requisitioning takes over possession it exercises its sovereign powers subject to the fulfilment of constitutional and statutory requirements. The State in respect of a requisitioned property is in no sense an agent of the true owner and such possession is nut on behalf of any particular person. In fact, during the period of requisitioning the rights of all persons to enjoy the property remains suspended and all other persons are excluded from possession and enjoyment of the requisitioned property, In case of requisition, there is no transfer or extinction of ownership but the State divests all other persons of possession subject to payment of compensation to the persons interested. R.C. Mitter and Akram JJ. in The Province of Bengal v. The Board of Trustees for the Improvement of Calcutta, 50 CWN 825, held that under the Defence of India Rules, 1939 requisition in relation to land, without more, is the acquisition of an interest in land, for a time or for an uncertain period. Their Lordships further held that the effect of a requisition under the Defence of India Rules, is to deprive the owner of his possession (vide page 828 of the report). Ramaprasad Mookerjee and Renupada Mukherjee, JJ. in Santi Devi & anr. v. Province of West Bengal, 58 CWN 180, also had occasion to consider-the effect of requisition made under the Defence of India Rules, 1939. In the context of the question whether a person who may not be able to prove to the hilt his right to retain possession against the rightful owner can be considered as a person interested and entitled to claim possession from the Requisitioning Authority on the basis of his possession. Their Lordships held that even a person with a precarious interest in land is entitled to compensation. Their Lordships held that even a person with a precarious interest in land is entitled to compensation. Their Lordships at page 186 of the reports laid down "for every property acquired or requisitioned all the persons interested are entitled to have their claims determined and assessed ; particularly, in the case of requisition, the effect of the requisition order is to deprive all parties who are interested in the property of their exercise of acts of possession or such other rights which were being exercised in respect of that property, under whatever title it may be." S.R. Das, J. (as he then was) in his judgment in The State of West Bengal v. Subodh Gopal Bose, 1954 SCR 587 : AIR 1954 SC 92 , described the power of the State to acquire and requisition property in exercise of power of eminent domain, police power the power of taxation as attributes of severeignty itself. The requisition takes place when right to possess is transferred without transfer of title. It involves the actual taking of the property out of the possession of the owner or converting the possession into the possession of the State or its nominee. 16. In the present case, I have pointed out that the Requisitioning Authority took over possession of the suit properties from the defendant No.1. The defendant No.1 was paid compensation during the period of requisition. After de-requisitioning the Authorities made over possession to the possession to the defendant No.1. Therefore, I hold that the plaintiffs cannot lawfully urge that during the period of requisition of the suit plots under the Defence of India Rules, 1939, their possession had revived and, therefore, their present suit was not barred by limitation. I cannot interfere with the finding made by the lower appellate Court that the plaintiffs had failed to prove their possession within 12 years before the institution of the suit and the suit was accordingly barred under Article 142 of the Limitation Act. 17. I, therefore, dismiss the appeal. In the circumstances of the case, both parties would bear their own costs throughout. Appeal dismissed.