Ram Adhar v. Danglawa — 1982 DIGILAW 450 (ALL)

JUDGMENT Deoki Nandan, J. - This is a plaintiff's second appeal. 2. The plaintiff came to Court with the allegations that he is the sirdar of plot No. 361 having an area of 1 bigha and 8 biswa, and bhumidhar of plot No. 360 having an area of 9 biswas, both of them situate in village Singholi in Tehsil and District Banda and that he has been in possession of the same. The plaintiff further alleged that some 4 years ago i.e., in or about the year, 1960 which was about 4 years before the institution of the suit, he constructed a house in the northern portion of plot No. 361 in which he tethered his cattle and stored agricultural implements. The defendant No. 1 was said to be a resident of village Tarain, a cousin of defendant No. 4, and the nephew of the defendant Nos. 2 and 3. The first defendant came to the village some two years ago i.e. in or about the year, 1962, and the plaintiff, on the recommendation of the second defendant, employed him as Halwaha, and further, on the recommendation of the defendants Nos. 2 and 3 and the father of the defendant No. 4, the plaintiff permitted the first defendant to reside in the said house hoping that he would look after the plaintiff's things stored there and would vacate whenever the plaintiff would like him to vacate. The plaint goes on to state that last year i.e., in or about the year, 1963, the second defendant and others became inimical to the plaintiff, and, consequently, defendants Nos. 3 and 4 also started constructing their house. When the plaintiff asked them to desist from doing so, they stopped the first defendant from working for him, whereupon the plaintiff asked the first defendant to vacate the house but he avoided doing so, and when the plaintiff finally asked him to do so for the last time in January, 1964, he refused, hence the suit. The relief originally claimed in the plaint was for the recovery of possession over the house by ejectment of the defendants and damages pendentelite and future at the rate of 25 paise per day. The relief originally claimed in the plaint was for the recovery of possession over the house by ejectment of the defendants and damages pendentelite and future at the rate of 25 paise per day. The written statement originally filed in the case purports to be on behalf of all the 4 defendants, but strangely enough the fourth defendant is described as "Dangalwa vald namaloom", in the title of written statement, although the written statement purports to bear the thumb impression of Dangalwa and the verification clause also purports to be verified by his thumb impression. This appears to be the result of gross negligence on the part of the learned counsel who has signed the written statement on behalf of the defendant No. 4, Dangalwa also. He could not have signed and verified the written statement and yet say that his father's name was unknown. 3. Be that as it may, after a general denial of the plaint allegations, the written statement goes on to plead that the plaintiff is not the owner of the house in suit and the plaintiff's house was situated away from the abadi and from the disputed site at a distance of some two and a half to three furlongs, and that the defendants Nos. 2, 3 and 4 are the owners of the house in suit, which is their ancestral house and a part of their bigger house on which they have been in possession since the time of their ancestors. The boundaries of the house given in the plaint were said to be wrong. The plaintiff, it was claimed, had no right left in the site of the house even if it was a part of plots Nos. 360 and 361, because the defendants' house was ancestral and constructed during the time of their parents and grand parents, and their predecessors had continued in possession over the same. Lastly it was pleaded that the first defendant has nothing to do with the house in dispute, that he was never an employee of the plaintiff, who never gave him any house to live in; nor did the defendants Nos. 2, 3 and 4 ever gave him the house; and that he was living with the defendants Nos. 2, 3 and 4 only because of relationship. Limitation was also pleaded as a bar to the suit. 2, 3 and 4 ever gave him the house; and that he was living with the defendants Nos. 2, 3 and 4 only because of relationship. Limitation was also pleaded as a bar to the suit. The following were the issues on which the parties went to trial, namely:- 1. Is plaintiff owner of the house in dispute ? 2. Was defendant No. 1 a licensee in the said house ? 3. Is the suit within limitation ? 4. To what relief, if any is the plaintiff entitled ? On the first issue the trial court found that the plaintiff had not constructed the house in suit, nor did he grant any licence thereof to the first defendant to reside therein; and that, therefore, the plaintiff had failed to prove his ownership of the house in suit. In view of the above finding, the trial court answered issue No. 2 in the negative. On issue No. 3 it did not record any finding saying that it was not necessary to do so; and dismissed the suit, observing that in view of the finding on issues Nos. 1 and 2 the plaintiff was not entitled to any relief. 4. The said findings, were assailed by the plaintiff on appeal before the lower appellate court. The lower appellate court observed at the outset that it was apparent from the plaint allegations themselves that the defendants were in possession of the disputed house and as such the onus lay heavily on the plaintiff to prove that he was the owner of the disputed house as claimed by him and that he has been in possession thereof within limitation. Further, according to the lower appellate court "The sheet anchor of the plaintiff's case is the fact that the disputed house was said to lie in plots Nos. 360 and 361 which belong to the plaintiff". On the basis of the report and map of an Advocate Commissioner, paper Nos. Further, according to the lower appellate court "The sheet anchor of the plaintiff's case is the fact that the disputed house was said to lie in plots Nos. 360 and 361 which belong to the plaintiff". On the basis of the report and map of an Advocate Commissioner, paper Nos. 26-C and 27-C, the lower appellate court held that the house in suit was situated in plot No. 361, "the mere fact of situation of the disputed house in plot No. 361 would not make the plaintiff owner thereof as it has been the case of the defendants that the house was their ancestral one and even if it lay in plot No. 361, it had been constructed by their ancesters long ago and even if the plaintiff has any right or title in the plot it had been extinguished by lapse of time", and that "it, therefore, becomes necessary for the plaintiff to prove that he had constructed the house as alleged by him". Having made these observations the lower appellate court proceeded to discuss the evidence and held". The ostensible purpose for construction of this house was to tether the cattle. It is also in evidence that the plaintiff had his cattle shed near his house. It is difficult to believe that he would construct another cattle house at a distance where he would not be able to look after his cattle. This fact coupled with the discrepancies regarding the constructions go to belie the claim of the plaintiff about the construction of the house". It is difficult to believe that he would construct another cattle house at a distance where he would not be able to look after his cattle. This fact coupled with the discrepancies regarding the constructions go to belie the claim of the plaintiff about the construction of the house". The ultimate finding of the lower appellate court is, "The possibility cannot be ruled out that since this house was adjacent to the abadi of the village at some point of time the defendants might have encroached upon plot No. 361 and constructed the house." According to the lower appellate court the oral evidence of the plaintiff and his witness Sri Gopal "is by no means sufficient to prove the construction of the house by the plaintiff." This is followed by the observation that; "The evidence regarding giving of the house to the defendant No. 1 as a licensee is even worse; "that" the evidence is so contradictory that it is impossible to act upon the same;" and that as against this the defendants had in their evidence denied that the house was constructed by the plaintiff or that he had been in possession thereof. The conclusion arrived at by the lower appellate court was that the plaintiff "has failed to prove his ownership of the house or that he had permitted the defendant No. 2 to occupy the same as licensee; "and that" the onus was upon him to prove the same and since he had failed to do so his suit was rightly dismissed." 5. In the result, the lower appellate court dismissed the appeal. On second appeal a learned single Judge of this Court held that the findings of the two courts below that the house was constructed by the defendants was not open to question, accepting at the same time the finding that the plaintiff had lawful title to the land as the sirdar of one plot and bhumidhar of the other. The finding that the defendants had constructed the house, led to the result that the date when they trespassed on to the land or the date when the house was constructed by them became of crucial importance for determining the issue whether the suit was within limitation. The finding that the defendants had constructed the house, led to the result that the date when they trespassed on to the land or the date when the house was constructed by them became of crucial importance for determining the issue whether the suit was within limitation. This Court also observed that the proper Article of the Schedule F to the Limitation Act applicable to the case was Article 35, but in view of the fact that neither of the two courts below had decided the question of limitation, this Court remitted the issue No. 3, in the suit within limitation to the lower appellate court for its finding. I may observe here that this Court also permitted amendment of the plaint by adding the relief, in the alternative, to the effect if for some reason it was found that the house did not belong to the plaintiff then in that case a decree for demolition of the whole or part of it may also be passed. The amendment was allowed on the basis that no change was brought about by the amendment in the cause of action and all that the plaintiff sought to do was to add an extra relief. I may also take note of the fact that the plaint has, however, remained unamended even to this day, and since no application was made for extension of time for making the amendment after the expiration of the period of 14 days within which the amendment should have been made under Order VI, Rule 18, the order permitting the amendment must be deemed to have lapsed; and one has to proceed as if the plaintiff had not been permitted to amend the plaint. 6. The lower appellate court has, on the issue remitted to it, returned the finding that "the defendants have trespassed on the land of the disputed house more than 12 years before the filing of the suit and have constructed a house over the same and the suit of the plaintiff is barred by limitation, and the suit filed was not within limitation." 7. Objections have been filed against this finding. Objections have been filed against this finding. I shall refer to the reasons given by the lower appellate court for its finding, but before I do so it appears necessary to notice the contention advanced by the learned counsel for the appellant that this Court is not bound by anything said in its remand order dated 19.1.1979 which was passed under Rule 25 of the Order 41 of the Code of Civil Procedure, and it is the duty of the court to hear and decide the appeal afresh uninhibited by any of the findings arrived at or observations made in the remand order. It was said, it is even open for the court now to hold on a hearing of the appeal that the remand was unnecessary, and, of course, the finding returned by the lower appellate court on the issue referred to it, can surely be interfered with and reversed, if this Court were to find that incorrect whether it is on facts or in law. Learned counsel for the appellant relied on the decision of the Supreme Court in Gogula Gurumurthy and others v. Ayyappa ( AIR 1974 SC 1702 ).- "We consider that when a finding is called for on the basis of certain issues framed by the appellate court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath v. Sat Narain (AIR 1923 Alld. 384) where it was held that:- 'Where an appellate court at the first instance does not decide the case but merely remits certain specific issues, it is open to the court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order." "It was also held that : "An order remanding issue under Rule 25 is not a final order. No appeal lies against it. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case come after remand." "It is quoted otherwise with an order of remand passed under Order 41, Rule 23 for this is an order which does finally determine, subject to any right of appeal, the issues which it decides." A similar view was taken by the Nagpur High Court in Sultan Beg v. Chuni Lal, (AIR 1918 Nag. 193);. In Upendra Lal v. Jogesh Chandra, 32 Cal. WN 1233, (AIR 1928 Cal. 186) it was said : "An order of remand made under order 41, Rule 25 decides nothing. The court, either the same or an differently constituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous." The Supreme Court approved of the above views and held that on the receipt of the finding from the lower court on issue remitted by the appellate court, it must hear and decide the appeal on all the points that are raised before it. 8. Learned counsel for the respondents argued that the finding returned by the lower appellate court on the issue of limitation remitted to it, is concluded by the fact found, and is, therefore, not amenable to interference on second appeal. The findings on the other issues were also sacrosanct as they were findings of fact and had become final. They could not be interfered with at all. This court had already expressed the view in the remand order that those findings could not be interfered with. It was suggested that even if the Supreme Court ruling permitted a full hearing of the case, it will be imporper for the court to take a different view and to differ and set aside its own findings and nullify its own order of remand. 9. In view of the decision of the Supreme Court it cannot be disputed that this Court must give a full hearing on all points raised after receipt of the finding on the issue remitted by it. The hearing cannot be confined merely to the questions arising from the finding returned by the lower appellate court on the issue remitted to it. The hearing cannot be confined merely to the questions arising from the finding returned by the lower appellate court on the issue remitted to it. It is also not the practise of this Court to hear a second appeal as if it were hearing a first appeal even in respect of the findings returned by the lower appellate court on the issue remitted to it. The finding returned by the lower appellate court is like any other finding on the other issues contained in the judgment of the lower appellate court under appeal. Whether the fact that the trial court in this case had not decided the issue of limitation and, therefore, the finding returned by the lower appellate court on that issue, is in fact an original finding as distinct from an appellate finding, should make any difference in the approach of this Court, is a question which need not, however, be decided in this case, in as much as on examining the reasons given by the lower appellate court for its finding. I have come to the conclusion that the finding returned by it is vitiated in law, and is liable to be set aside as such on second appeal. 10. To begin, with, the lower appellate court correctly appreciated the order of remand when it observed that the High Court had affirmed the finding that the defendants had constructed the house and they were trespassers and that it had to find when the house was constructed by the defendants. It was agreed before the lower appellate court by the counsel for both the parties that the matter was covered by Article 65 of the Schedule to the Limitation Act, and in that view of the matter, the lower appellate court should have been aware of the crucial importance of the date of construction of the house by the defendants, as the date on which the defendants could be said to have first trespassed on the land which was found to belong to the plaintiff. But in the very next sentence the lower appellate court started mixing up things when it said : "The period of limitation prescribed is 12 years from the date the hostile title is asserted and in this case it will be date of trespass over construction on the disputed land." The lower appellate court then discussed the evidence in the light of the pleadings and even came to the conclusion that though the witnesses of defendants have said that the house was ancestral and it had fallen down and was reconstructed, the assertion was not supported by documentary, evidence and if there had been a house on the land at the time when the Zamindari was abolished and were recorded in the khasra, the plaintiff would not have become a sirdar, under the provisions of the U.P.Z.A. & L.R. Act, of plot no. 361 in which the house has been found to exist. The lower appellate court drew the inference from this evidence that the statements of defendants' witnesses that the house in suit was ancestral is controverted by record ; and proceeded to say "However, there is consistent evidence that the defendants have constructed the house. Bhaggu (D.W. 2) appears to be a party witness but on that ground his testimony cannot be discarded. There is nothing in the cross-examination to upset the statement of these witnesses about the fact that the defendant constructed the house and gave a portion of it to Dangalwa defendant for residence and the rest of it was used for cattle shed.............The defendant witnesses have been believed on the other points also. Their evidence, therefore, cannot be under-valued. However, the evidence of the plaintiff is meagre inconsistent. Shiv Gopal (P.W. 2) does not inspire confidence ....................Moreover, Ram Adhar (P.W. 1) admitted that the door of the house of Bhurwa opens into the courtyard........................... In the plaint there is no assertion that Bhurwa defendant has opened a door towards the disputed, house.................If this was done illegally then naturally the plaintiff should have taken some step to have the door closed. In the plaint there is no assertion that Bhurwa defendant has opened a door towards the disputed, house.................If this was done illegally then naturally the plaintiff should have taken some step to have the door closed. Thus the evidence of the plaintiff is not at all consistent and I decide this issue against the plaintiff appellants in view of the fact that the defendants have trespassed on the land of the disputed house more than 12 years before the filing of the suit and have constructed a house over the same and the suit of plaintiff is barred by limitation and the suit filed was not within limitations." 11. The above finding of the lower appellate court and almost all the reasons given by it for the same have been quoted by me in extenso. In the earlier part, which has not been quoted, the finding arrived at by the lower appellate court is "that there is certain discrepancies about removation of the whole, of the disputed house, or part of it but the evidence of all these defendants witnesses is consistent that the house was constructed 15 to 16 years before of their giving statement in the court coming to the year 1950 or 52." It would thus appear that the above finding, arrived at in the earlier part of the judgment, that the house was constructed in the year 1950 or 52, was nullified by its own finding that it was controverted by documents on record. The only result which could be drawn from these almost self-contradictory observations made by the lower appellate court is that while on the one hand it found that there was no house in existence on the land, in the year 1952, the oral evidence of the defendant showed that they had constructed the house in suit in or about the years 1950 or 1952. The lower appellate court did not try to reconciliate this inconsistency but proceeded to believe the oral evidence of the defendants with the simple observation that the oral evidence of the defendants should be believed because it has been found that the defendant had constructed the house, and their the evidence had been believed on other points also. 12. The lower appellate court did not try to reconciliate this inconsistency but proceeded to believe the oral evidence of the defendants with the simple observation that the oral evidence of the defendants should be believed because it has been found that the defendant had constructed the house, and their the evidence had been believed on other points also. 12. Probably the lower appellate court had no option but so to state the apparently inconsistent result, in view of the remand order of this Court in which it was said that the finding that the house in suit had been constructed by the defendants had become final because this Court could not interfere with it on second appeal. The fact that the house had been constructed by the defendants being beyond controversy, so far as the lower appellate court was concerned, it probably found that it had no option but to accept the defendants' evidence that the house had been constructed by them 15 or 16 years ago, although the date of construction alleged by them happened to fall some time before the abolition of Zamindari, and in spite of the fact that if the house had been in existence since before the date of abolition of Zamindari, the plaintiff could not have become a sirdar of plot No. 362 on which the house had been found to situate. The finding that the plaintiff has been a sirder of the land in dispute had also been affirmed by this Court in the judgment remitting the issue of limitation to the lower appellate court. One cannot, therefore, blame the lower appellate court for inconsistency in its findings. Indeed the lower appellate court did not record a clear finding as to when the house in suit was constructed by the defendants. Its finding is that if the defendants had constructed the house in suit 15 or 16 years before the date of their statements, as alleged by them, the plaintiff could not have become a sirder of the land on which the house existed. 13. Its finding is that if the defendants had constructed the house in suit 15 or 16 years before the date of their statements, as alleged by them, the plaintiff could not have become a sirder of the land on which the house existed. 13. This necessitates an examination of the findings of the two courts below recorded earlier, that land on which the house in suit stood was held by plaintiff as a sirdar, but that the plaintiff has failed to prove his claim, that the house in suit was constructed by him, and that, on the other hand, "the possibility cannot be ruled out.....that the defendants might have encroached upon plot No. 361 and constructed the house." 14. I have already referred in the earlier part of this judgment to the reasons given by the lower appellate court for its findings. The basic reason which appears to have been given for the finding that the house in suit was not constructed by the plaintiff appears to be its view that it is difficult to believe that the plaintiff "would have constructed another cattle house at some distance from his house at a place where he would not be able to look after his cattle. The inference drawn by the lower appellate court was not that the house in suit had been proved to have been constructed by the defendants but that the defendants might have encroached upon the plot no. 361 and constructed the house. Although this Court held in the remand order that this amounted to a finding that the defendant had constructed the house in suit and it could not be interfered with on the second appeal, I find it difficult to subscribe to that view. In my view the lower appellate court had in its judgment under appeal found on issues Nos. 1 and 2 that the plaintiff held the land on which the house in suit stood as a sirdar thereof, but it found it difficult to believe the plaintiff's case that he had constructed that house in suit for tethering his cattle because he already had a cattle shed near his house and it was difficult to believe that the plaintiff would construct another cattle shed at a some distance away from his house. The reasons given by the lower appellate court for disbelieving the plaintiff on this point were thus wholly conjectural, for a man could surely have a cattle shed near his house and another near his fields ; in which he may not only tether his cattle out also keep his agricultural implements. Incoming to the conclusion which it did the lower appellate court in the judgment under appeal, over-looked the crucial fact that according to the defendants case the house in suit was their ancestral house which had fallen down and they had reconstructed it to live in. It was not the defendants' case that the house in suit was not their residential house but was a cattle shed in which they tethered their cattle and had given a part of it to the first defendant to live in. However, since the defendants Nos. 2 to 4 were not living in the house in suit, and their residential houses lay in another plot of land, though nearby, their witness D.W. 1 Dangalwa even stated that while two kothries of the house were given to him, the rest were used as a cattle shed. This case was consistent with the defendant's cases. The defendants' case was that the house in suit was their ancestral house. For all intents and purposes it meant that it was their residential house, and could not be interpreted to mean that it was their cattle shed. The above analysis of the finding of the lower appellate court in its judgment under appeal also brings out, a basic error in its approach. Having found that the land on which the house in suit stood was held by the plaintiff as a sirdar, the plaintiff's title to the land on which the house in suit stood was proved. The lower appellate court ought to have gone into the question as to when, if at all, the defendants trespassed on the land by constructing the house rather than to make a guess to the effect that the land being adjacent to the abadi of the village the defendants might have encroached on it, and to conclude that they had constructed the house "at some point of time". Indeed it cannot be said that the lower appellate court recorded a clear finding that the house in suit was constructed by the defendants. Indeed it cannot be said that the lower appellate court recorded a clear finding that the house in suit was constructed by the defendants. It only guessed that it might have been constructed by the defendants. Its view was that the plaintiff had not proved that he had constructed the house or the cattle shed in suit. If the lower appellate court had understood the law of limitation of this point correctly, it ought to have realised that on proof of plaintiff's title to the laud in suit, the burden of proving that the plaintiff had lost his title thereto or that the plaintiff's suit for possession was barred by time, lay squarely on the defendants, vide Qadir Bus v. Ramchand and others, (AIR 1970 Alld, 289) FB ; Nair Service Ltd. v. K.C. Alexander and others, ( AIR 1968 SC 1165 at pages 1172-1173). The lower appellate court did not examine the question from that angle. It placed the burden of proof on the plaintiff and held that he had not satisfactorily proved that the house in suit had been constructed by him and that he had allowed the first defendant to live in it. 15. It was in the background of these findings that this Court remitted the issue of limitation to the lower appellate court for a finding. This court also made it clear that it was Article 65 which applies and not Article 64. But unfortunately this Court bound down the lower appellate court to its earlier finding that the house in suit was constructed by the defendants, as a finding of fact, without examining in detail the reasons for that finding. The answer to the question of limitation was, as observed by this Court in the order of remand, dependant on the finding as to the date of construction of the house in suit. In an ordinary case the date of construction might well have been 15 or 16 years before the institution of the suit without impinging upon the original title of the plaintiff. But on the facts of the present case as pointed out by the lower appellate court in its finding, the plaintiff could not have acquired title to the land as a sirdar thereof, if the house in suit had been constructed 15 or 16 years ago i.e., in the year 1950 or 1952, before the abolition of Zamindari. But on the facts of the present case as pointed out by the lower appellate court in its finding, the plaintiff could not have acquired title to the land as a sirdar thereof, if the house in suit had been constructed 15 or 16 years ago i.e., in the year 1950 or 1952, before the abolition of Zamindari. Since the finding that the plaintiff was the sirdar of the plot of land No. 361 on which the house in suit stood had also been confirmed by this Court in the order of remand, the lower appellate court was faced with a real conundrum. For the reasons given above it was obviously not possible for the lower appellate court to resolve the conundrum. But it appears clear to me that the land on which the house in suit stands has been held by the plaintiff as a sirdar. The house in suit is in the nature of a cattle shed and is also used for keeping agricultural implements. A part of it has been in the occupation of the first defendant as a licensee, and in all probability the house in suit was constructed by the plaintiff for the purposes of a cattle shed. The defendant Nos. 2 to 4 had not pleaded and had failed to prove that they had constructed it as a cattle shed and had been in possession thereof for more than 12 years before the institution of the suit. 16. In the result, the plaintiff was entitled to possession over the house including the site thereof. The appeal succeeds and is allowed with costs. The judgment and decree under appeal are set aside. The plaintiff's suit is decreed for possession over the house in suit 'with the site thereof as per boundaries given at the foot of the plaint. The plaintiff shall be entitled to his costs through-out against all the defendants. 17. As to the second relief for pendentelite and future mesne profits at the rate of 25 P. per day, it is not possible for this Court to determine whether and at what rate the mesne profit should be awarded but in view of the rule laid down in paragraph 18 of the report of the decision of the Supreme Court in Bhagwati Pd. v. Chandramaul ( AIR 1966 SC 735 ), it would be open to the plaintiff to apply to the trial court for determination of the rate at which the mesne profits should be allowed to him as against the contesting defendants or such of them as the trial court may find liable from the date of the suit up to the date of delivery of possession over the house to the plaintiff.