Rajendra Narain v. Bajranji — 1983 DIGILAW 400 (ALL)

JUDGMENT :- This is a plaintiffs second appeal in a suit for demolition of a wall and a Chappar as also recovery of possession over the land from which the plaintiff might be deemed to have been dispossessed. The plaintiff claimed title to the land described by the letters ABCD at the foot of the plaint map measuring 22 ft. wide east-west and 72 ft. long north-south, by purchase from Harakhchandra and others who were descendants of one Sri Madho Prasad. The suit was contested by defendants 1, 2, 3, 6 and 7. They admitted that the land in suit lay in Mohal Madho Prasad and that the sale deed on which the plaintiff claimed was executed by Harakhchandra and others. The defendants further admitted the raising of the construction which was in the nature of 3 walls PQ, PR and RS up to the height of 3 ft. and are shown by dotted lies on the plaint-map. Almost half the construction PQ and R.S. is to the west of the line AB of the land claimed by the plaintiff. Under point A, which is to the south, is a well, and about the middle on the line between AB, there is an Imli tree. The whole of the land in suit admittedly formed part of plot 310. The defendants are descended from Ramlal who was the brother of Madho Prasad, ancestor of Harakhchandra and others. In the pedigree given at the foot of the written statements of defendants 1, 2, 3, 6 and 7, the defendant 4 was described as a lunatic; and defendants 4 and 5 remained absent and did not contest the suit. 2. There was an earlier litigation between Ratilal the father of Harakhchandra, on the one side, and Kandbu Ram on the other, who was the brother of the deceased defendant 1 Bholanath, and uncle of defendants 2, 3, and 5 to 7, and grand uncle of defendant 4. That was Suit No. 4 of 1942 in the Court of City Munsif, Jaunpur, which related to the same land which is now in suit. Ratilal and his aunt Smt. Sarju Devi were plaintiffs 1 and 2 in the suit, and Mohan Koeri was the first defendant and Kandhu Ram was the second defendant in that suit, Mohan Koeri. claimed under Kandhu Ram. The Plaintiffs case in that suit was that the plots Nos. Ratilal and his aunt Smt. Sarju Devi were plaintiffs 1 and 2 in the suit, and Mohan Koeri was the first defendant and Kandhu Ram was the second defendant in that suit, Mohan Koeri. claimed under Kandhu Ram. The Plaintiffs case in that suit was that the plots Nos. 309 and 310, which lay in Mohal Madho Prasad, had been allotted to them on partition. One Rajjab Fakir had his house on plot No. 309. He died issueless long ago and his house fell down and the land which had become parti reverted to the zamindars, plot No. 310 was also parti land belonging to the Zamindars who were in possession of it. Mohan Koeri was merely a tenant and had no right or ownership therein. In December 1941 Mohan Koeri unlawfully erected a Chappar on plot No. 309 and also erected another chappar and fixed a Kolhu and placed a cattle trough on plot No. 310. Mohan Koeri claimed that he was in possession of plots Nos. 309 and 310 under a Kirayanama granted by Kandhu Ram, Kandhu Ram claimed to have acquired the land by sale deed from Bipat Shah. He was a nephew of Rajjab Shah and had got his name entered in partition proceedings. That suit was decreed by the Trial Courts judgment dt. 3rd June, 1943 (Ext.1); "for possession of plot No. 310 in suit by removal of the cattle trough, Iron pressing machine placed in it by defendant Mohan Koeri and for restoration of the land to its original state prior to the construction and fixtures." The claim for possession of plot No. 309 was dismissed. The decree which followed that judgment is Ext.2 on the record. There was an appeal from that judgment being civil appeal No. 216 of 1943, and the Court of the Addl. Civil Judge, Jaunpur, who heard it, modified the trial Courts decree by saying that; "Sahan Darwaza of defendant 2 shall extend in 1 biswa 6 dhours of land to the west of line AB in the Commissioners map, thus making the defendants possession over a total area of 3 biswas. The kolhu and the cattle trough will probably come in this area, but if both or any lies to the west of it, the same shall be removed. The kolhu and the cattle trough will probably come in this area, but if both or any lies to the west of it, the same shall be removed. The well shall not be included in the defendants Sahan as it is not the property of the defendants and it was never sold to them. The land which still remained to the west of defendants sahan shall be Zamindars uftada land and pathway, vide Ex.A4 D/-11-10-1944. The commissioners man referred to in the said modified decree of the Court of the Additional Civil Judge, Jaunpur is Ext.3 on the record, The well and the Imli tree are shown at some distance to the west of the line AB on that map in plot No. 310. As observed above, the plaintiff claims only the land up to the Imli tree and the well and not that which lies to the east of the same. 3. In view of the said earlier litigation. between the parties, the first important question which arose between the parties was whether the judgment in Suit No. 4 of 1942 of the Court of City Munsif Jaunpur operated as res judicata; and secondly whether the present suit is barred by Section 47, Civil P. C. These were the subject matters of issues Nos. 6 and 5 respectively as framed by the trial Court. 4. The Trial Court found that only Kandhu Ram was a party to the earlier suit. Other members of his family were not parties to it; therefore, the decree passed therein cannot bind the defendants who are owners of the property. Issue No. 5 was taken up by the trial Court along with issues 2 and 7 for consideration. Issue 2 was whether the plaintiffs transferor had obtained possession of land after the decree in Suit No. 4 of 1942, and if not its effect; and issue 7 was whether the defendants had been in adverse possession of the property in suit, and if so, whether they had acquired title to same. The trial Court found that the execution application, being execution case No. 147 of 1947 was moved, but the order sheet of the case, Ext.A8 showed that the execution application was struck off for want of prosecution on 13-8-1946. The plaintiffs case was that possession was obtained out of Court. The trial Court found that the execution application, being execution case No. 147 of 1947 was moved, but the order sheet of the case, Ext.A8 showed that the execution application was struck off for want of prosecution on 13-8-1946. The plaintiffs case was that possession was obtained out of Court. The trial Court held that the plaintiffs predecessor in interest never obtained possession of the land in suit, either through Court or out of Court, after passing of the decree in Suit No. 4 of 1942, and further that the contesting defendants have been in possession of the land in suit as owners thereof even after passing of the decree, and that the right of the plaintiffs predecessor in interest came to an end and the defendants had become full owners of the land. It also held that the present suit was barred by Section 47, Civil P. C. In the result the Trial Court dismissed the suit and the lower Appellate Court has confirmed the findings and the decree of the Trial Court. 5. Three questions were raised before me in the second appeal; firstly, whether the judgment in the earlier Suit No. 4 of 1942 operates as res judicata secondly; whether the present suit for possession in respect of the same land which was the subject-matter of the earlier suit is barred by S.47, Civil P. C. and thirdly, whether the defendants could be said to have prescribed title to the land by adverse possession. 6. So far as the first question is concerned, there is no difficulty in holding that the judgment in the earlier suit rendered (operate as) res-judicata, in view of Explanation VI to Section 11, Civil P. C., which says that "where persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating." Kandhu Ram was a person who litigated bona fide in respect of the right claimed in common by him and the present defendants. Ragho Prasad Gupta v. Krishna poddar, AIR 1959 SC 316 is a clear authority for the view that. I am taking, Indeed. Sri C.P. Srivastava, learned Counsel for the defendant respondents almost conceded that it was so. Ragho Prasad Gupta v. Krishna poddar, AIR 1959 SC 316 is a clear authority for the view that. I am taking, Indeed. Sri C.P. Srivastava, learned Counsel for the defendant respondents almost conceded that it was so. The view taken by the two Courts below on this point was clearly erroneous and it must be held that the judgment in Suit No. 4 of 1942 of the Court of City Munsif, Jaunpur operates as res judicata in the present suit. It must, therefore, be held that the plaintiffs predecessor in interest was the Zamindar and owner of the western part of the land of plot No.310, that is to say, of the land remaining after marking off 1 biswa 6 biswansis of land to the west of the line AB on the map Ext.3. The question is whether the land ABCD as shown on the plaint map in the present suit is part of that remaining land. Having a look at the man Ext.3, and continued map dated 14-12-1967, paper No. 99 Ka 2, along with the Amins report 98 Ka-2, dated 14-12-1967, it appears to me that the land purchased by the plaintiff which is shaded red on the Amins map dated 14-12-1967 (Paper No. 99 Ka-2) was that which was held to belong to the plaintiffs predecessor in interest in the earlier Suit No. 4 of 1942; and that therefore the plaintiff has clearly established his title to the land in suit by purchase from Harakhchandra and others under the sale deed dated 21-2-1966. 7. Some difficulty, however, does appear to arise in view of the finding of the two Courts below that the defendants have been in adverse possession of the land in suit and have prescribed title thereto and that the present suit is barred by S.47, Civil P. C. The finding that the present suit is barred by S.47 is based on the finding that the plaintiffs predecessor in interest did not enter into possession of the land which was held to be his after the decree in the earlier suit. That is the crucial question which arises in the present case. The question is of fact but learned counsel for the appellant contended that the finding of the Courts below on this point was vitiated in law. That is the crucial question which arises in the present case. The question is of fact but learned counsel for the appellant contended that the finding of the Courts below on this point was vitiated in law. The finding that the defendants have been in adverse proprietary possession of the land in suit since 1914, that has been recorded by the lower Appellate Court is on the face of it wholly untenable in view of the decree in the earlier Suit No. 4 of 1942. It was found that the defendants predecessor was the owner in possession of only 1 biswa 6 biswansis of the land of plot No. 310 to the west of the line AB as shown on the map Ext.3. The remaining western part of plot No. 310 was clearly found to be the parti land of the plaintiffs predecessor as Zamindar. That suit was filed in the year 1942 and if the defendants or their predecessor in interest had been in adverse proprietary possession of that land since 1914, the plaintiffs predecessor in interest could not have been held to be the owner and Zamindar of that western part of the plot. No. 310 which alone is now in suit. The real question was whether the plaintiffs predecessor in interest was already in such possession of the parti land as its zamindar, as it admitted of, or that at any rate he entered into possession of it after the Appellate Courts decree in Suit No. 4 of 1942. 8. The decree of the Trial Court in Suit No. 4 of 1942 was for possession by removal of the cattle trough etc. and restoration of the land to its original state. The Appellate Court held in that case that probably the Kolhu and the cattle trough lay within the area of 1 biswa 6 biswansis of the land to the west of the line AB on the map which is Ext.3 in the present suit. The said 1 biswa 6 biswansis of land had to be marked off by measurement and the Kolhu and the cattle trough would be required to be removed only if they fell in the remaining western part of the land of plot No. 310. The said 1 biswa 6 biswansis of land had to be marked off by measurement and the Kolhu and the cattle trough would be required to be removed only if they fell in the remaining western part of the land of plot No. 310. The observation of the Appellate Court in that suit that they probably lay within that area of 1 biswa 6 biswansis to the immediate west of the line AB on the map which is Ext.3 in the present suit, and were thus not, liable to be removed, is entitled to great weight; and the evidence of the plaintiff in the present suit has been that on measurements got done through an Amin privately, the plaintiffs part of the land was to the west of the Imli tree and the well. The well had been found by the Appellate Court in that case to be the property of the plaintiffs predecessor in interest and situate on the land belonging to him. The result was that the plaintiffs own showing the decree passed in the earlier suit was inexecutable inasmuch as the Kolhu and the cattle trough was not liable to be removed, and if there was no question of removal, there could be no question of delivery of possession, and the decree in the earlier suit operated as a decree of declaration to the effect that western portion of 1 biswa 6 biswansis of the land to the west of the line AB on the map which is Ext. 3 in the present suit belonged to the present defendants predecessor in interest and that the remaining western part of plot No. 310 was the property of the plaintiffs, predecessor in interest. There was thus no question of taking any steps for execution of the decree in Suit No. 4, of 1942. The plaintiffs evidence was that after the decree in the earlier suit, measurements had been got done by an Amin privately and he had pointed out that the land to the east of the Imli tree and he well belonged to the defendants predecessor in interest while that to the west of it belonged to the plaintiffs predecessor in interest and that the plaintiffs predecessor in interest had entered into possession accordingly. This was in consonance with ordinary course of business and the two courts below, in my opinion, acted illegally in not appraising the evidence in the light of the presumption arising under S.114. Evidence Act, by having regard to the common course of business in relation to the facts of the case, I am, therefore, of the view that the present suit was not barred by anything contained in S.47, Civil P. C.and it is impossible to say that the defendants had prescribed title to the land by adverse possession. I have only to add that the decree in the earlier suit became final on 11-10-1944, and the present suit was filed on 4-3-1966 within 12 years from that date. 9. The appeal succeeds and is allowed with costs. The judgment and decree under appeal are set aside. The suit is decreed for a mandatory injunction commanding the defendants to remove those parts of the walls PQ, QR, and RS and the Paulia and Chappar which fall on the land shaded red on the western side of plot No. 310 on the map dated 14-12-1967 prepared by Sri Satya Deo Singh Amin, and confirmed by the trial courts order dated 17-1-1968 (Paper No. 99 Ka-2 on the record), The plaintiff shall further be entitled to recover possession over the said land shaded red on that map: and his costs throughout. The said map 99 Ka-2 shall be made part of the decree of this Court. Appeal allowed.