AMIN MOLLA v. FAINUDDIN AHAMMAD — 1985 DIGILAW 313 (CAL)

SUDHIR RANJAN ROY, J. ( 1 ) THE appeal by the defendant No. 2 arises out of the judgment and decree passed in Title Appeal No 241 of 1965 by the learned District judge, Murshidabad affirming the judgment and decree passed by the learned Munsif, Additional Court, Berhampore in Title Suit No 229 of 1964. ( 2 ) THE relevant fats are as follows: the Ka schedule lands belonged to Subid Molla and Nepal Sk in equal shares. On Nepal's death his moiety share was inherited by his son Michu Sk. (dedfendant no. 1) And on Subid's death his moiety share went to his widow Misi Bewa, son Amin Molla (defendant no. 2) and daughter Surjannessa (defendant no. 8 ). ( 3 ) SUBSEQUENTLY, Misi Bewa on behalf of self and as guardian of the minors Amin Mola and Michu Sk. Sold the Ka schedule lands to the plaintiff and his brother Haji Arsed Ali (defendant no. 9) By a kebala date December 27, 1924. The kobala was, however, taken in the name of Arced alone. ( 4 ) SINCE the purchase the plaintiff and the defendant no. 9 had been in possession of the lands of more that twelve years in assertion of hostile title. Thereafter, by virtue of a solenama decree passed in Partite on Suit No. 136 of 1962 of the court of the Subordinate Judge, Berhampore, the plaintiff became the exclusive owner of the ka schedule lands. ( 5 ) THE title of the defendant knows. 1 and 2, if any, to the Ka Schedule lands was lost in this way by adverse possession. ( 6 ) DURING the revision settlement operations, however, the defendant no. 1 got his name erroneously recorded against some of the Ka schedule plots as in forcible possession since 1361 B. S. The said plots have been described in the Kha schedule to the plaint. ( 7 ) THE defendant nos. 1 and 2 having threatened to disturb the plaintiffs' possessions in the Ka schedule lands, the plaintiff filed a suit against them for declaration of his title and permanent injunction being Title Skit No 115 of 1957 in the first Court of the Massif at Berhampore. The said suit was dismissed in respect of the Kha schedule plots on the ground that the plaintiff did not have any possession in respect thereof. The said suit was dismissed in respect of the Kha schedule plots on the ground that the plaintiff did not have any possession in respect thereof. On appeal by the plaintiff, being Title Appeal No. 178 of 1959, the learned Subordinate Judge, Berhampore dismissed the same observing that the plaintiff's remedy it in respect of he KHA schedule plots was by filing a suit for recovery of possession. Shortly after the disposal of the appeal, the principal defendants unlawfully dispossessed the plaintiff from the Kha schedule consequent to which the plaintiff filed the instant suit for a declaration of his title to the Kha schedule lands, for recovery of possession in respect thereof and for other relief's. ( 8 ) ONLY the defendant no. 2 contested by filing written statement alleging inter alias that the was barred by res judicata, that the plaintiff did not acquire any title to an Kha schedule lands by his purchase from Misi Bewa who had authority to sell the interest of the minors and further the plaintiff did not also acquire any title to the lands by adverse possession as alleged. ( 9 ) THE suit was decreed by the learned trial court in favor of the plaintiff and on appeal by the defendant no. 2, the said appeal was dismissed by the learned lower appellate court. Hence this appeal by the defendant no. 2. ( 10 ) APPEARING on behalf of the appellant, Mr. Dasgupata, the learned Advocate, made three fold submissions. His first contention was that in view of the decision in the previous suit, the was barred by res judicata and that it was also barred under Order 2 rule 2 of the Code of Civil Procedure. His last contention was that on the date of vesting of the suit lands the plaintiff not being in khas possession thereof, was not entitled to retain the same and accordingly his suit for khas possession was not maintainable in law. ( 11 ) ON the other hand, Mr. His last contention was that on the date of vesting of the suit lands the plaintiff not being in khas possession thereof, was not entitled to retain the same and accordingly his suit for khas possession was not maintainable in law. ( 11 ) ON the other hand, Mr. Roy, the learned Advocate for the respondent, contended that the cause of action of the two suits being entirely different, Order 2 rule 2 of the code could not be a bar and that the suit was also not barred by res judicata since in the former suit it was not decided that he plaintiff did not acquire any title to the kha schedule by adverse possession. Regarding the last contention of Mr. Dasgupta, Mr. Roy's contention was that the possession of the defendant no 1 in the suit-plots being without any color of title the plaintiff's right to retain the same was not lost in view of the scheme of the West Bengal Estates Acquisition Act and as a matter of fact, the plaintiff has been allowed to retain the same under the State. ( 12 ) IN order to appreciate the points raised by Mr. Dasgupta it may be useful to refer to the facts giving rise to the previous suit being Title Suit No. 115 of 1957. That suit was filed by the plaintiff for declaration of his title to the ka schedule plots, altogether ten in number, and for permanent injunction on the footing that the plaintiff was in actual physical possession of all the said plots on the basis of his purchase from Misi bewa, who executed the kobala dated December 27, 1924 on behalf of self as well as the guardian of the defendant nos. 1 and 2, who were then minors? But since a Mohammdan mother is not he natural guardian of her minor child, far less to speak of the minor child of her husband's and she had no larger poser that nay outsider to deal with her minor child's property or the property of the husband's deceased brother, evens de facto guardian, the plaintiff based his title mainly on deceased brother, even as de facto guardian, the plaintiff based his title mainly on adverse possession for more than twelve years. ( 13 ) THE suit was, however, decreed in part in respect of 5 out of the 10 plots described in the ka schedule to the plaint on the finding that the plaintiff was possession in respect of the khu schedule lands,viz, the remaining five plots, and acquisition of title therein of the plaintiff by adverse possession was also disbelieved. ( 14 ) AGAINST the judgment and decree passed by the learned trial court the plaintiff moved up in appeal, but the learned lower appellate court dismissed the appeal with the observation that the plaintiff's remedy lay by way of a suit for recovery of possession. Significantly, the learned lower appellate court did not enter into the controversy regarding acquisition of the title by the plaintiff by adverse possession. ( 15 ) IT was contended by Mr. Dasgupta appearing behalf of the appellant that since the plaintiff to his knowledge was lout of possession of the kha schedule plots before the institution of the former suit, he ought to have prayed for khas possession in respect thereof and not having done so the prayer for khas possession in respect thereof and not having done so, the prayer for khas possession in the instant suit in respect of the kha schedule plots is clearly barred by the provisions of Order 2 rule 2 of the Code. In support of this contention Mr. Dasgupta referred to the decision of the Supreme Court in State of Madhya j pradesh v. State of maharastra, Air 1977 SC 1466 . In the said decision it has been held by the Supreme Court that the bar under Order 2 rule 2 will operate when the plaintiff omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief. If on the date of the former suit, the plaintiff is not aware of the right on which he insists in the latter suit, the plaintiff cannot be said to be disentitled to the relief in the latter suit. ( 16 ) NOW, the plaintiff filed the former suit on the footing that he was in possession of all the 10 plots, but the courts on the basis of the evidence on record disbelieved the plaintiff 's story of possession in respect of 5 of the plots. ( 16 ) NOW, the plaintiff filed the former suit on the footing that he was in possession of all the 10 plots, but the courts on the basis of the evidence on record disbelieved the plaintiff 's story of possession in respect of 5 of the plots. In the circumstances, it will be difficult to hold that with the specific knowledge that he was out of possession of the said 5 plots the plaintiff omitted to sue for khas possession in respect thereof. In this connection Mr. Roy, the learned Advocate appearing on behalf of the plaintiff-respondent, relied upon the decision of the Mysore High Court in Pasianna v. Apourao, AIR 1950 Myosre 227. There, almost under similar circumstances it was held that he cause of action in the two suits were distinct. The first suit had proceeded on the ground that the plaintiff was in possession of the suit property. In such circumstances, the second suit was not barred by the provisions of Order 2 rule 2 of the Code. It was also found that since in the previous suit the plaintiff alleged that he was in possession, he could not ask for possession and that such plea would have been incompetent. That the allegation was subsequently found to be without basis was immaterial. ( 17 ) IN my judgment, the above decision of the Mysore High Court lays down the law correctly on the point and I am in respectful agreement with ire. That being so, the instant suit by the plaintiff for recovery of possession in respect of the Kha schedule plots cannot be said to be barred by the provisions of Order 2 rule 2 of the Code. ( 18 ) COMING now to the question of res judicata, the learned trial court in the former suit recorder a finding to the effect that the plaintiff had failed to prove acquisition of his title by advise possession for more than twelve years. On appeal by the plaintiff the learned lower appellate court without entering into the said controversy, dismissed the appeal with the observation that the plaintiff's remedy was by was by way of filing a suit for recovery of possession. ( 19 ) IT was strongly contended by Mr. On appeal by the plaintiff the learned lower appellate court without entering into the said controversy, dismissed the appeal with the observation that the plaintiff's remedy was by was by way of filing a suit for recovery of possession. ( 19 ) IT was strongly contended by Mr. Dasgupta that since the plaintiff's title in the instant suit is based only on adverse possession, the earned trial court's finding in the previous suit which was not disturbed by the court of appeal, will operate as res judicata. Referring to the observations of the learned lower appellate court in the instant case this at "in the former suit it was not decided whether or not the plaintiff acquired title by adverse possession and whether he was entitled to recover possession. " Mr. Dasgupta contended that this observation of the learned lower appellate court is not borne out by the records and to substantiate his contention he drew my attention to the specific finding of the learned trial court on the point in the former suit which is as hereunder;"so far the other suit plots are concerned, viz. , plot no 1395. 1411, 1456, 1548 and 3870, the defendant no. 1 and 2's possession has not been completely ousted as we inform the evidence of the D Ws. "incidentally, the defendant nos. 1 and 2 in the former suit are identical persons as the defendant nos. 1 and 2 in the instant suit and the plots referred to are the Kha schedule plots in the instant suit. ( 20 ) THE main question involved in the former suit was whether the plaintiff had title to the suit plots and since by purchase form Misi Bewa the plaintiff could not acquire any tile to the property to the extent of the shares of the minors, the plaintiff based his title on adverse possession. ( 21 ) THE learned trial court in the former suit proceeded on the footing that by his purchase from Misi Bewa the plaintiff acquired title to the property only to the extent of her share and in that way he became a co-sharer of the defendant nos. 1 and 2. ( 21 ) THE learned trial court in the former suit proceeded on the footing that by his purchase from Misi Bewa the plaintiff acquired title to the property only to the extent of her share and in that way he became a co-sharer of the defendant nos. 1 and 2. And since without complete ouster a co sharer's interest could not be extinguished by adverse possession, the learned total court considered the evidence of possession from that poking of view and held that there has not been complete ouster of the defendant nos. 1 and 2 from the Kha schedule plots. In other words, the learned trial court's specific finding in the former suit was that in react of the kha schedule plots the plaintiff did not acquire any title by adverse possession. ( 22 ) REFERRING to the judgment of the learned lower appellate court in Title Appeal No. 178 of 1952, Mr. Dasgupta contended that the ground on which the appeal was dismissed was that the plaintiff being out of possession his remedy was by was of a suit for recovery of possession. The finding of the learned trial court on the point of acquisition of title by the plaintiff by adverse possession not having been disturbed by the appellate court, it was contended by Mr. Dasgupta that the said finding should be deemed to have been affirmed in appeal and as such conclusive. In the instant suit, where parties are identical, the main question involved once again is whether the plaintiff has acquired title to the kha schedule plots by adverse possession and here, according to Mr. Dasgupta, the finding of the learned trial court in the former suit operate as res judicata. ( 23 ) THIS contention of Mr. Dasgupta, in my view, is not without substance. ( 24 ) THE Supreme Court in Ramgobinda v. Bhakta Pala, Air 1971 SC 664 has heid that when the decision was given by the trial court on merits and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, such dismissal by the appeal court has the effacer of confirming the decision of the trial court on merits and that it amounts to the appeal being heard and finally decided on the merits, whatever may be that ground for dismissal of the appeal. The decision of the trial court as such, will operate as res judicata. ( 25 ) IN the above view of the matter, I hold in agreement with Mr. Das Gupta that the finding of the trial court in the former suit that the plaintiff had failed to establish acquisition of title to the kha schedule plots by adverse possession by total ouster of the principal defendants, operates as res judicata in the instant suit and the same question cannot be gone into once again. The learned lower appellate court, in my judgment, went wrong in holding otherwise. ( 26 ) THE last contention of Mr. Dasgupta was that the plaintiff being out of possession of the kha schedule plots at least since 1361 B. S. i. e, since before the date of vesting, as found by both the learned courts in the former suit and as is also evidenced by the relevant R. S. Record, he was not entitled to retain the same under S. 6 of the West Bengal Estates Acquisition Act since under clause (d) of S. 6 of the Agricultural, lands (which the a schedule lands are) only in khas possession, not exceeding 25 acres in area can is retained. ( 27 ) IN support of his contention he first of all referred me to the decision of the Supreme Court in Gurucharan Singh v Kamala Singh, AIR 1977 SC 5 . That was a case under the Bihar land Reforms Act, but on a consideration of the matter from various standpoints and relying not only on the definition of "khas possession" as given in S 2 (k) of the said Act, the supreme Court held that khas possession is actual physical possession. It was further held on the uniform authority of the Court that under no stretch of imagination possession of a trespasser could be deemed to be khas possession or even constructive possession of the owner. ( 28 ) THIS decision of the Supreme Court has been consistently followed by this court in the matter of interpretation of the term "khas possession" under the West Bengal Estates Acquisition Act, which, unlike the Bihar land Reforms Act, does not contain any definition of khas possession. ( 29 ) A learned single Judge of this Court in Jagannath Prasad v. Goti Unai, 85 CWN 317 has held that khas possession means actual possession. ( 29 ) A learned single Judge of this Court in Jagannath Prasad v. Goti Unai, 85 CWN 317 has held that khas possession means actual possession. ( 30 ) THE latest Bench decision of this Court on the point is in Benode Behari v. Shew Kamal, 1983 (1) CLJ 340 , where relying on the decision of the Supreme Court in Guarcharan Singhs's case (supra) it has been specifically held that an intermediary who is not in khas possession cannot enforce his right to possess even against a trespasser after the vesting of his estate. ( 31 ) THE facular and legal position being thus more than clear, it may be considered whether the contentions made by Mr. Roy for the respondent are well founded. ( 32 ) IT was contended by Mr. Roy that in view of the scheme of the West Bengal Estates Acquisition Act a trespasser's possession cannot deprive the owner of his right to retain agricultural lands under S 6 (d) of he Act and in that connection he drew my attention to clauses (i), (k) and (1) of S. 6 to show that none of these clauses refer to the possession of a rank trespasser. But, this in my view is beside the point since clause (d) of S. 6 refers to khas possession and as held by the Supreme Court in Gurucharan Singh v. Kamal Singh (supra) that under no stretch of imagination possession of a trespasser can be deemed to be the khas possession or even constructive possession of the owner. Incidentally, according to the plaintiff the defendants are possessing the lands as rank trespassers. ( 33 ) THUS, the plaintiff in the previous suits having been found to be out of possession of the kha schedule land since 1361 B. S. or even before, the said lands should be deemed to have vested in the State and the plaintiff having no right to retain the same, his suit for khas possession in respect thereof is not maintainable in law. ( 34 ) THE appeal, accordingly, succeeds and is allowed on contest. The impugned judgment and decree of the learned courts below are hereby set aside and the plaintiff's suit being Title Suit No. 229 of 1964 are dismissed on contest. No order is made for costs. On behalf of the plaintiff-respondent a prayer was made by Mr. ( 34 ) THE appeal, accordingly, succeeds and is allowed on contest. The impugned judgment and decree of the learned courts below are hereby set aside and the plaintiff's suit being Title Suit No. 229 of 1964 are dismissed on contest. No order is made for costs. On behalf of the plaintiff-respondent a prayer was made by Mr. Roy for leave to appeal to the Supreme Court. But since this appeal does not involve any substantial question of law, which is still rest integral, the leave to appeal is refused. Appeal allowed.