Karamdeo Bharthi v. Bigu Ram Chamar — 1990 DIGILAW 19 (PAT)

Judgment S.B.Sinha, J. 1. This First Appeal arises out of a judgment and decree dated 30th March, 1981 passed by Sri Indrajeet Mishra, 4th Additional Subordinate Judge, Palamau at Daltonganj in Title Suit No. 45 of 1978 dismissing the plaintiffs appellants suit. 2. The facts of the case, bereft of all unnecessary details, lie in a very narrow compass. 3. According to the plaintiffs, the lands in suit were the raiyati lands of Bhaghiratbi Chamar and were recorded in his name in the cadestral Survey Settlement Record of Rights, which took place in the year 1918. 4. Bhaghirathi Chamar, allegedly died issuless in the year 1947. According to the plaintiff, Chandrika Bharthi, who was the Karta of the joint family consisting of himself and his brothers and their sons came in possession of the suit lands long before 1947 and remained in possession thereof, openly continuously and to the knowledge of all concerned. 5. One Nakchandi Chamar, who was brother of the aforementioned Bhagirathi Chamar raised a dispute with regard to possession of Chandrika Bharthi resulting in initation of a proceeding under Sec. 144 of the Code of Criminal Procedure. The said proceeding was decided in favour of Chandrika Bharthi and it was held therein tbat be was in possession of the lands in question. 6. It is further admitted that the aforementioned Nakchandi Chamar filed a suit against Chandrika Bharthi being Title Suit No. 69 of 1948 which was decided on 24-2-1950, In the said suit, a declaration for title and recovery of possession was passed, but the decree dolder of the aforementioned suit allegedly did not execute the aforementioned decree. 7. It is further the case of the plaintiff that Chandrika Bharthi and his other coparcener continued to possess the suit land and their possession was recognised by the ex-landlord, who in the return filed by him after vesting of Zamindari mentioned therein that the plaintiffs were his tenants. 8. Allegedly, the plaintiffs continued to pay rent to the State of Bihar, but in the year 1971 the heirs of the aforementioned Nakchadi Chamar filed an application for cancellation of the Jamabandi and by an order dated 15-3-1973, the said demand was cancelled by an order pas.ed by the D.C.L.R. in Mics Case No. 25 of 1972-73. 9. 8. Allegedly, the plaintiffs continued to pay rent to the State of Bihar, but in the year 1971 the heirs of the aforementioned Nakchadi Chamar filed an application for cancellation of the Jamabandi and by an order dated 15-3-1973, the said demand was cancelled by an order pas.ed by the D.C.L.R. in Mics Case No. 25 of 1972-73. 9. The plaintiffs filed the aforementioned suit after lossitng in the aforementioned case, claiming, inter alia the following reliefs: (a) It be declared by the court that the suit land as fully described in Schedule "A" below appended at the foot of the plaint and forming a part thereof, is the occupancy raiyati land of the plaintiffs and the defendant had absolutely no right, title and interest therein. (b) That plaintiffs be allowed all costs of the suit. (c) That plaintiffs be allowed any other relief or relief to which they may be deemed entitled. 10. The defendant-respondent appeared in the aforementioned suit and filed s written statement, inter alia, contending therein that the suit is barred under Sec. 34 of the Specific Relief Act and res judicata. It was further contended on behalf of the defendant that he became the rightful owner in respect of properties recorded in the name of Bhaghirathi Chamar and after the decree passed in the aforementioned Title Suit, he continued to be in possession as it was held by the appellate Court in Title Appeal No. 77/3 of 1950-51, by judgment dated 23-11-1951 and as such the question of the plaintiffs acquiring title by adverse possession does not arise. 11. Upon the aforementioned pleading of the parties, the learned trial court framed the following issues; (1) Is the suit as framed maintainable ? (2) Have the plaintiffs valid cause of action for the suit ? (3) Is the suit hit under Sec. 35 of the SR Act ? (4) Is the suit barred by the principles of res judicata ? (5) Is the suit leads occupancy lands of the plaintiffs ? (6) Has the defendant any right, title, interest and possession over the suit lands ? (7) Whether the suit is bad for non-joinder of necessary parties ? (8) To what relief or reliefs, if any are the plaintiffs entitled 12. The learned trial court, in his impugned judgment, inter alia, held that the suit was barred under Sec. 34 of the Specific Releif Act. (7) Whether the suit is bad for non-joinder of necessary parties ? (8) To what relief or reliefs, if any are the plaintiffs entitled 12. The learned trial court, in his impugned judgment, inter alia, held that the suit was barred under Sec. 34 of the Specific Releif Act. He, however, held that the judgment and decree passed in the earlier suit will not operate as res judicata 13. It has further been held by the learned trial court that the plaintiffs have not acquired any right, title and interest by prescription. The learned trial court further held that the suit is bad for non-impleading of Nagbasia, the widow of Nakchedi Chamar, who is still alive. 14. The learned trial court further held that the suit is also bad for non-impleading the widow and daughters of Chandramani Bharthi, who are also Co-sharers of the plaintiffs. 15. Mr. Debi Prasad, the learned Counsel appearing on behalf of the appellant submitted that the learned trial court committed an illegality in not decreeing the plaintiffs suit. According to the learned Counsel, in view of the fact that in the aforementioned Title Suit 69 of 1948, the learned trial court granted a decree in favour of the plaintiff of the said suit declaring his title as also a decree for recovery of possession out as the said decree was not put in execution nor any delivery of possession was affected in favour of the decree holder in accordance with the aforementioned decree, the plaintiffs will be deemed to be continuing in possession of the lands in suit and in that view of the matter, the plaintiffs must be held to acquire title by prescription. 16. According to the learned Counsel, the plaintiffs have been able to prove their possession by reason of the return filed by the landlord as also the rent paid by them in the office of the State of Bihar. 17. The learned Counsel further submitted that the suit was not barred under the proviso to Sec. 34 of the Specific Relief Act, inasmuch as the plaintiffs were in possession of the suit land on the date of the institution of the suit. 18. According to Mr. 17. The learned Counsel further submitted that the suit was not barred under the proviso to Sec. 34 of the Specific Relief Act, inasmuch as the plaintiffs were in possession of the suit land on the date of the institution of the suit. 18. According to Mr. Debi Prasad, Nagbasia Chamain, the widow of Nakchedi Chamar was not a necessary party as according to the defendant himself, Nagbasia gifted her right, title and interest in the properties in suit in favour of the defendant. 19. Mr. Anil Kumar Sinha, the learned Counsel appearing on behalf of the defendant-respondent, on the other hand, submitted that the plaintiffs in the earlier suit alleged to have come in possession, on the basis that the Chandrika Bharthi had advanced a loan to the recorded tenant. However, in his evidence, the plaintiff alleged that the ex-intermediary granted a settlement in favour of the aforementioned Chandrika Bharthi. 20. The learned Counsel submitted, thus the plaintiffs have made two inconsistent cases as to how and in what manner they came in possession of the land in suit. 21. The learned Counsel further submitted that in any event, as the appellate court in his judgment (Ext.F) held that Nagbasia Chamain had been in possession of the land in suit, it was not necessary for the decree-holders of the said suit to obtain delivery of possession by putting the said decree in execution, 22. The learned Counsel further submitted that in this view of the matter and particularly in view of the fact that the defendants were found to be in posses-Son by the Revenue Courts the plaintiff was under an obligation to make a further and consequential prayer, in terms of Proviso to Sec. 34 of the Specific Relief Act. 23. The learned Counsel further submitted that as the plaintiffs do not accept the story of alleged gift made by Nagbasia in favour of the defendant Sd further in view of the fact that even the learned court of below hat also held Sat Nagbasia had no authority to make a gift to the property in suit as the was necessary party and suit could not have been adjudicated in her absence. 24. The learned Counsel further submitted that the judgment passed in Title Appeal No. 77-3 of 1950-51 will operate as res judicate as against the defendant. 25. 24. The learned Counsel further submitted that the judgment passed in Title Appeal No. 77-3 of 1950-51 will operate as res judicate as against the defendant. 25. In view of the rival contentions of the parties, the following questions arise for consideration in this appeal s (i) Whether the plaintiff was entitled to declaration of their title allegedly acquired by adverse possession ? (ii) Whether the judgment and decree passed in Title Appeals No. 77-3 of 1950-51 would operate as resjudicata although the decree passed in Title Suit No. 69/48 was not modified by the appellate court ? (iii) Whether the suit was barred under the proviso to Sec. 34 to the Specific Relief Act, 1963 ? (iv) Whether the suit was bad for non-joinder of Nagbasia Chamain as a party in the suit ? whether that Bhagirathi Chamar left behind heirs ? Requisition 1 and 2: 26 As noticed hereinbefore, the following facts are admitted that Bhaghirathi Chamar was the recorded tenant in respect of the properties in suit, and died in the year 1947. He left behind the defendant as his heirs and leagal representative alongwith the person, as would be evident from the following genealogical of table, the correctness whereof has not been disputed before me which as follows: Sukar Chamar ! ------------------------------------------------------------ ! ! ! ! Khedan Chamar Amrit Chamar Bhagirathi Chamar Nakchedi Chamar ! = Nagbasia alive ------------------------------------------------------------- ! ! ! Josuri Chamar Akloo Chamar Ramlagan Chamar ! Bigu Chamar (Defendant) 27. In law, there is absolutely no doubt that upon death of the aforementioned Bhaghirathi Chamar his right title and interest devolved upon his surviving brother in absence of any proof that during his life-time he relinquished his right title and interest by reason of any surrender of abandonment in favour of the landlord. 28. There is nothing on record to show that Bhaghirathi Chamar during life time abandoned the properties in question or allowed Chadrika Bharthi to come in possession thereof after obtaining some loan. 29. However, as noticed hereinbefore, the plaintiff in their evidence completely changed their aforementioned story and alleged that after the death of Bhagirathi Chamar, the then landlord came in Possession of the land in question and settled the same loan in favour of Chandrika Bharthi. 30. 29. However, as noticed hereinbefore, the plaintiff in their evidence completely changed their aforementioned story and alleged that after the death of Bhagirathi Chamar, the then landlord came in Possession of the land in question and settled the same loan in favour of Chandrika Bharthi. 30. In view of the fact that Bhaghirathi Chamar left behind heirs and legal representatives, the ex-landlord neither could have entered into possession of the lands in question nor had any right to grant any settlement thereof in favour of Chandrika Bharthi, as alleged by the plaintiffs, 31. Even assuming that Chandrika Bharthi came in possession of the land in suit in terms of a contract of loan advanced by him to Bhaghirathi Chamar, the same would amount to an usufructuary mortgage. In this view of the matter, too the said Chandrika Bharthi could not have denied add disputed the title of Bhaghirathi Chamar, and, thus in law, could not deny the title of his heirs and legal representatives also. 32. If the case of the plaintiffs to the effect that Chandrika Bharthi came is possession during the life-time of Bhaghirathi Chamar, in lieu of loan advanced by him to the said recorded tenant is true, even in such an event, the aforementioned Chadramani Bharthi and consequently the plaintiffs are estopped and precluded from denying the title of Bhaghirathi Chamar and/or his heirs and legal representative, in view of Sec. 116 of the Indian Evidence Act and/or the principles analogous thereto. 33. Further, admittedly a dispute arose by and between Chadrika Bharthi and Makchhedi Chamar, resulting in initiation of a proceeding under Sec. 144 of the Code of Criminal Procedure. In the said proceeding, the possession of Chandrika Bharthi was declared, but, it is a settled principles of law that in a proceeding under Sec. 144 of the Code of Criminal Procedure, an Executive Magistrate has no right, authority or jurisdiction to declare the possession of any party, inasmuch as the jurisdiction of an Executive Magistrate in a proceeding under Sec. 144 of the Code of Criminal Procedure is confined to the question as to whether there exists any apprehension of breach of peace inter alia in respect of the possession of the land in question or not. 34. From a perusal of the judgment passed by the learned Munsif in Title Suit No. 69 of 1948 (Ext. 34. From a perusal of the judgment passed by the learned Munsif in Title Suit No. 69 of 1948 (Ext. 4/B), it is evident that the learned Munsif purported to have passed a decree for recovery of possession in favour of Nakchhedi Chamar, principally on the ground that possession of Chandrika Bharthi was declared in the aforementioned proceeding under Sec. 144 of the Code of Criminal Procedure. 35. In such a situation, in my opinion, the learned appellate court while adjudicating upon the appeal being Title Appeal No. 77-3 of 1950-51 had ample jurisdiction in terms of Order 7 Rule 7 of the Code of Civil Procedure read with Order 41, Rule 33 thereof to come to a conclusion that in fact Nakchhedi had been in possession of the suit land. 36. It is now well known that appeal is a continuation of the suit and the appellate court exercises the same power as that of the trial court. 37. It is now well settled that in terms of Order 7 Rule 7 of the Code of Civil Procedure, a trial court is entitled to grant a relief, not specifically prayed for if it is not inequitable, to do so. Thus, even if a decree for confirmation of possession is prayed for, a trial court is competent to grant a decree for recovery of possession or vice versa. 38. In such a situation and also in terms of Order 4; Rule 33 of the Code of Civil Procedure, it was open to the respondent of the aforementioned Title Appeal No. 77-3 of 1950-51 to contend before the appellate court that finding of the trial court to the effect that Chandrika Bharthi was not in possession till the aforementioned proceeding under Sec. 144 of the Code of Criminal Procedure was not correct and in fact, he continued to be in possession even thereafter, in order to sustain the decree. 39. It is now admitted that Nakchhedi Chamar in the aforementioned Title Suit No. 69 of 1948, prayed for a declaration of title and confirmation of possession or in the alternative for a decree of recovery of possession. 39. It is now admitted that Nakchhedi Chamar in the aforementioned Title Suit No. 69 of 1948, prayed for a declaration of title and confirmation of possession or in the alternative for a decree of recovery of possession. Thus, in view of the relief sought for, by Nakchhedi Chamar in the aforementioned Title Suit No. 68 of 1948, the trial court has also the appellate court was bound to decide he issue of the respective claim of possession of the parties to the said suit. 40. In my view, it was thus open to the learned trial court to consider the disputed question of possession of the parties and come to a conclusion that Nakchhedi Chamar had continued to be in possession of the properties in suit, as Nakchhedi Chamar had been found to be in possession of the suit land in the aforementioned appeal by the appellate court the said judgment was binding upon the parties to the aforementioned appeal. 41. In such a situation, it was not necessary for the appellate court to make a formal modification in the decree, in terms of Sec. 2(2) of the Code of Civil Procedure. 42. It is now a settled principle of law that the decree passed by a trial court merges in the decree of the appellate court. Reference in this connection may be made to S.S. Ralhon V/s. State of Madhya Pradesh -- , 43. It is admitted by the parties that the aforementioned Chandrika Bharthi, through whom the plaintiffs are claiming their right title and interest, preferred a Second Appeal against the judgment and decree passed in the aforementioned Title Appeal No. 77-3 of 1950-51 in this Court but the said Second Appeal was dismissed. 44. In this view of the matter, the judgment and decree passed by the appellate court in the aforementioned Title Appeal No. 77-3 of 1950-51 had finally decided the respective rights and claims of the parties to the suit. 45. By reason of the aforementioned judgment, which is contained in Ext. F, the learned court of appeal below had also adjudicated upon the issue which was necessary to be decided in the aforementioned suit i.e., as to who was in possession of the lands involved in the aforementioned suit on the date of the institution of the said suit. 46. By reason of the aforementioned judgment, which is contained in Ext. F, the learned court of appeal below had also adjudicated upon the issue which was necessary to be decided in the aforementioned suit i.e., as to who was in possession of the lands involved in the aforementioned suit on the date of the institution of the said suit. 46. Thus, in my opinion, the decision with regard to the question by the appellate court in the aforementioned Title Appeal No. 77/3 of 1950-51 (Ext. F.) being final and conclusive shall operate as resjudicata as against the plaintiffs of the present case. 47. It is, therefore, clear that as the aforementioned finding of the appellate court to the effect that Nakchhedi had all along been in possession of the suit land was binding upon Chandrika Bharthi and thus consequently is binding upon the present plaintiffs the plaintiffs could succeed in the suit so far as their claim of acquisition of title by adverse possession is concerned only if they had pleaded and proved that they came in possession of the suit lands subsequent to the passing of the said decree as a raw trespasser. Such a case has not been made out by the plaintiffs. 48. In this situation, a court may draw a presumption of continuity of possession both forward as also as backward. 49. Thus, taking into consideration the pleadings of the parties as also the decree passed in the aforementioned Title Appeal No. 77/3 of 1950-51, it must be held that the suit was barred under the principles of resjudicata and the plaintiffs were not entitled to declaration of their alleged raiyati interest, which they claim to have acquired by adverse possession. Re: Question III. 50. The learned trial court has rightly Held that in view of the fact that name of Bhagirathi Chamar has been entered into the record of rights, a presumption of continuity of possession will arise. Further in view of the fact that the possession of the defendant and /or his predesser in interest was found by a competent civil court in the earlier litigation as also by the Revenue Courts. in of action for filing of the aforementioned suit, it was obligatory on the part of the plaintiffs to pray for a consequential relief. 51. Further in view of the fact that the possession of the defendant and /or his predesser in interest was found by a competent civil court in the earlier litigation as also by the Revenue Courts. in of action for filing of the aforementioned suit, it was obligatory on the part of the plaintiffs to pray for a consequential relief. 51. In this view of the matter, it must be held that the suit was barred under the proviso to Sec. 34 of the Specific Relief Act, 1963 . 52. It is not denied or disputed Nagbsia Chamin has also succeeded to the interest of Nakchhedi Chamar. It has been found that Nakchedi died in the year 1955. In terms of the provisions contained in Sec. 3 of the Hindu Womens Right to Property Act, 1937, Nagbasia Chamain had therefore succeeded to the interest of her husband, as a limited owner. 53. In terms of the Sec. 14 the Hindu Succession Act, 1956 her limited interest in the property would be deemed to have become absolute as she being a co-sharer along with other heirs of Nakchhedi Chamar would be deemed to be possessed of the said properties on the date of coming into the force of Hindu Succession Act, 1956. 54. It is true, as has been contended by Mr. Prasad that the defendant made out a case that Nagbasia Chamin had gifted away her right, title and interest in favour of the defendant, by such a case has not been accepted by the plaintiff nor the same has been accepted by the learned trial court. 55. In this view of the matter, Nagbasia Chamian having some interest in the properties in suit, on the plaintiffs own showings, she was a necessary party. 56. Taking this all facts and circumstances of the case, I am of the view that there is no merit in this appeal, which is accordingly dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.