Kalika Singh v. State — 1981 DIGILAW 333 (ALL)

JUDGMENT Kaushal Kishore, Member - This is plaintiff's second appeal against the judgement and decree dated 21-11-1973 by the leaned counsel Additional Commissioner, Allahabad Division, Allahabad, confirming the order of the learned trial Court dated 18-11-1972 dismissing the suit under Section 229B/209 of the U.P. Zamindari Abolition and Land Reforms Act. 2. I have heard the learned counsels for both parties and have also perused the record. 3. A preliminary objection was taken by the learned counsel for the respondent that the appeal is incompetent having been filed beyond time. The appeal was admitted on 22-1-1975 and the objection regarding limitation was filed on 19-2-1981, on the ground that the order of admission is an exparte order and so the objection can be taken up even after wards is accordance with the accepted principle followed in the ruling reported in 1951 R.D. 37, that the appeal was filed on 26-2-1974 when the extended period of 90 days expired on 27-2-1974, that the copy of the judgement of the learned trial court was filed on 16-3-1974 which was beyond limitation. The learned counsel for the appellant explained that 27-2-1974 was declared a public holiday due to elections and so so 28-2-1974, the appeal was filed within time. Further the time taken in obtaining copy of the learned trial court's order i.e. from 19-2-1974 to 13-3-1974 has to be excluded in computing period of limitation and so even the judgement of the learned trial court was filed within time. 4. The learned counsel for the respondent has pointed out that Section 12 of the Limitation Act did not provide any exclusion of time taken in obtaining copies of the judgement and decree other than those against which the appeal had been filed and so the time taken in obtaining copy of the judgement of the learned trial Court could not be excluded. At the same time, para 161 of the Revenue Court Manual requires copies of judgement and decree by the trial court to be filed in second appeal. He derived support from the ruling in 1954 R.D. 345. At the same time, para 161 of the Revenue Court Manual requires copies of judgement and decree by the trial court to be filed in second appeal. He derived support from the ruling in 1954 R.D. 345. The learned counsel for the appellant has cited rulings reported in AIR 1967 Allahabad 524 and AIR 1956 Allahabad 435 in support of his contention that the limitation period has to be extended for all copies of judgement and decree to be filed along with the appeal to the extent of time taken in obtaining such copies. In fact, in those ruling, it is laid down that even if the copies of judgement and decree are obtained separately, the two periods except the concurrent period to be counted only once, would be added to the limitation period. The principle followed remains the same whether it be copy of judgement/decree of the first appellate Court or of the trial Court and has to be applied to all copies which must necessarily be filed along with the appeal so that it may not be incompetent. 5. The learned counsel for the respondent has further referred to a ruling reported in 1980 U.P.R.J. 329. As the copy of the trial Court's judgement was filed in that case on 18-1-1973, the learned Member, Board of Revenue held that the appeal was barred by time. However, in that case, it was not mentioned whether the application for copy of the judgement of the trial Court was made before 23-11-1972 when the limitation expired or not. Therefore, the relevant question concerning the copy of the trial Court's order remained unresolved. In fact, the observations in the case of Ram Bux v. Moti Lal Etc. 1954 R.D. 345. were also based on another ruling of the same year in case of Kazmi Begam v. Jabbar Hussain 1954 R.D. 62. which may better be reproduced: "Limitation of 90 days prescribed for filing the second appeal is directed to the filing of the copy of the decree and judgement of the fist appellate Court, the copy of the judgement of the trial Court being applied for within 90 days and not left over till the expiry of the extended period of limitation after including the time taken in obtaining copy of the decree and judgement of the first appellate Court. When the copy of the decree and judgement of the trial Court has been applied for after the expiry of 90 days prescribed for filing second appeal, the second appeal must be held not to have been filed properly." In the latter ruling reported in Ram Bux v. Moti Lal Etc., (supra) at one place it was held that time required for obtaining copy of the trial Court's judgement was not to be excluded for computing limitation, and at another place, it was observed that in case the trial Court's judgement did not accompany the appeal but has been applied for within the extended period of limitation and filed within time given by the Board, it was a competent appeal. The appellant was not absolved from the obligation of applying for copy of the trial Court's judgement within the prescribed period of limitation. From these observations, it is clear that in these both rulings the view was held that the copy of the trial Court's judgement must have been applied for within the prescribed period, which indeed meant the extended period excluding the period taken in obtaining copies of judgement and decree of the first appellate Court. From this very view, the contradictory view expressed that the time required for obtaining the copy of the trial Court's judgement could not be excluded for computing limitation loses all force. If the requirement was just that the copy of the trial Court's judgement must be applied for within the period of limitation, the time required for the preparation of the copy could very well exceed the period left and this requirement implicitly meant that the period taken in obtaining the copy must be excluded in computing the period of limitation. A situation can be considered where the appellant is too prompt and applies for the copy of trial Court's judgement on the very first day after the judgement of the first appellate court but for reasons unforeseen, the copy cannot be prepared within 90 days, the appeal in such case would necessarily have to be filed beyond the original period of limitation and for no fault of his the appeal would become incompetent if the time taken in obtaining the copy was not excluded in computing the period of limitation. It may be seen that in the rulings referred to earlier a judicially considerate view was taken and it was held that the periods taken in obtaining copies of the judgement and decree was to be added together and excluded in computing the period of limitation and even if the application for the copy of decree was made in the extended period, it would be deemed quite regular since the provisions of law did not require the appellant to be prompt in applying for the copy of the judgement or decree. From the above considerations and the common view expressed in the cases of Kazmi Begum v. Jabbar Hussain and Ram Bux v. Moti Lal Etc. (supra) by the Hon'ble Members (B.R.) it must be held regular if the copy of the judgement of the trial Court had been applied for within the extended period of limitation, and further time taken in obtaining the copy of the judgement/decree of the trial Court must also be exclude in computing the period of limitation. The present appeal would, therefore, be deemed to have been filed within the extended period of limitation and competent. 6. The learned counsel for the appellant has argued on merits of the case, taking the grounds that the finding in respect of adverse possession is a mixed question of fact and law and so it can be discussed and interfered with in the second appeal. There are other grounds also that the finding by the learned first appellate Court were not based on consideration of entire evidence, inference had been drawn without evidence. The Court erred in discarding the presumption of law in respect of entries in the record of rights and the continuity of possession had not been established, with regard to the finding on adverse possession being a mixed question of fact and law. Rulings reported in AIR 1932 Allahabad 393, A.I.R. 1941 Oudh 436, A.I.R. 1934 Alld. 238, A.I.R. 1949 Alld. 699 and A.I.R. 1963 S.C. 1917 (para 6) have been cited by the learned counsel for the appellant. The first two and the fourth are to the effect that the finding of possession for a certain period is a question of fact and whether such possession could be regarded as adverse is a question of law. 238, A.I.R. 1949 Alld. 699 and A.I.R. 1963 S.C. 1917 (para 6) have been cited by the learned counsel for the appellant. The first two and the fourth are to the effect that the finding of possession for a certain period is a question of fact and whether such possession could be regarded as adverse is a question of law. The learned counsel for the respondent has argued that the period of adverse possession as found by the learned first appellate Court has to be accepted since it does not involve any question of law. To Support his contention that a finding of fact cannot be interfered within the second appeal. He has cited a ruling reported in A.I.R. 1963 S.C. 302 amongst others, but this principle is not disputed. The counsel further argued that adverse possession as used in the aforesaid previous ruling is not equivalent to the possession without consent as in Section 209 of the U.P. Zamindari Abolition and Land Reforms Act. However, this cannot be acceptable in view of the same meaning being attached to adverse possession as to possession without consent in the various ruling using the words 'adverse possession'. One such example is the ruling reported in 1980 R.D. 73. which leaves no doubt on the point since it mentions the acquisition of Sirdari rights on the basis of adverse possession, in the context of a dispute under Section 229B/209 of the U.P. Z.A and L.R. Act. In Nizamuddin Etc. v. Mangal Sen, A.I.R. 1949 Alld. 699. it was clarified that the test of the finding being binding or not in second appeal is whether it was legally arrived at, which is the same thing as to say whether the inference drawn from the fact found was legally correct. In the present case, the fact of adverse possession during 1372F-74F is not admitted by the appellant but is a finding by the learned first appellate Court. This finding is an inference drawn from the documents which did not relate to the years 1372 to 1374F and could be regarded as a question of law. The ruling reported in A.I.R. 1934 Alld. This finding is an inference drawn from the documents which did not relate to the years 1372 to 1374F and could be regarded as a question of law. The ruling reported in A.I.R. 1934 Alld. 288 clarifies the point further, wherein it was held that where the finding of adverse possession or the contrary is an inference from the facts found by the lower appellate Court, that inference is open in second appeal to be dealt with by the Court. The learned counsel for the respondent has cited rulings reported in A.I.R. 1949 Alld. 699, A.I.R. 1945 Alld. 197 and A.I.R. 1938 Oudh 238 in support of his contention that the finding relating to the period of adverse possession could not be interfered with but in view of my discussion of the matter above, this clear-cut division of finding of fact and finding of law is neither possible nor applicable in the present case. 7. The learned counsel for the appellant has argued that the learned Additional Commissioner has not discussed the oral evidence of the appellant on the point of possession and presumption in respect of the entries has bot been legally applied. In the learned trial Court's judgement, no distinct finding about 1372, 1373 and 1374F has been given and the oral evidence of the defendants was found consistent with the documentary evidence. However, it is seen that the defendant's case was clearly that he was in adverse possession for 18-20 years and the same statement was given by the two DW's. If the learned trial Court and the first appellate Court on the basis of documentary evidence held adverse possession from 1371F onwards, this could not be consistent with the oral evidence of the defendant and in respect of the period of adverse possession, the oral evidence of defendant had to be found unacceptable. In the circumstances, it was necessary for the learned Additional Commissioner to discuss the oral evidence of the plaintiff to arrive at a proper inference. The two Courts have mentioned the DWs. saying that the defendant's adverse possession was since long which is not what the DWs. actually stated. 8. In respect of adverse possession it is a settled law that the adverse possession has to be proved from year to year and the continuity cannot be presumed. The learned Additional Commissioner has not discussed the evidence of P.Ws. saying that the defendant's adverse possession was since long which is not what the DWs. actually stated. 8. In respect of adverse possession it is a settled law that the adverse possession has to be proved from year to year and the continuity cannot be presumed. The learned Additional Commissioner has not discussed the evidence of P.Ws. on possession but finding an imaginary discrepancy in the statement of the P.W-1 and P.W-3, found them unreliable. P.W. 3, Hulla had stated that the Parcha Bandobast was distributed to several tenants P.W-1 stated that Parcha Bandobast was not issued to him. Several persons could not necessarily include P.W-1 as there is obviously no contradiction. Even on this supposed contradiction, the whole statement could not be discarded. Then, the learned Additional Commissioner has inferred the continuity of adverse possession on the basis of the entry in class-9 in favour of Hukim Singh in 1371F and this entry not being expunged later. This, in my opinion, is not sufficient evidence to prove the continuity of adverse possession Parch Bandobast could prove adverse possession of Hakim Singh only in 1371F. In respect of 1375F, three documents have been filed, part II of the extract khatauni 1375F, showing Hakim Singh is Class-9 since 1371F, the extract khasra 1375F copy issued by the lekhpal on 18-6-1968 showing Hakim Singh in column 5 and none in the remarks column (both filed by the defendant), and extract of khasra 1375F copy issued on 6-8-1970, showing Hakim Singh in column 5 and in remarks column the following entry- "Hakim Singh Ghair Qsbiz Ka Naam Varg 9 Se Kharij Ho. Sd./- Illegible." The extract khatauni of one year only casts doubt. 9. I, therefore, allow the appeal, set aside the judgements and decrees of both the Courts below and in consequence, the suit of plaintiff is decreed.