Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R.S.Chatterji
  • R.Prasad
  • R.P.Katriar
  • P.R.Das
  • Mahabir Prasad
  • Baidya Nath Prasad
Judges
  • Ramaswami
  • Sarjoo Prasad, JJ.
Acts
  • Article 142, Limitation Act.2.
  • Article 144, Limitation Act,
  • Article 142, Limitation Act,
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R.S.Chatterji
  • R.Prasad
  • R.P.Katriar
  • P.R.Das
  • Mahabir Prasad
  • Baidya Nath Prasad
Judges
  • Ramaswami
  • Sarjoo Prasad, JJ.
Acts
  • Article 142, Limitation Act.2.
  • Article 144, Limitation Act,
  • Article 142, Limitation Act,
See more information ...
Smart Summary

Judgment Summary — Ramaswami, J. (with Sarjoo Prasad, J. concurring)

Factual and Procedural Background

The dispute concerns 14.68 acres of bakasht land in village Chak Dharampur. The mouza originally belonged to Ramadhin Singh and Shyamadhin Singh who on 1 August 1917 executed a sale deed in favour of Safdar Ali. Safdar Ali then made a registered wakf deed appointing the plaintiff as mutawalli. The plaintiff's plaint alleges that Ramadhin and Shyamadhin had purchased the land in 1912 in execution of rent decrees and obtained dakhaldehani; that in a survey the land was recorded as bakasht; and that Safdar Ali continued in khas possession after his purchase.

The defendants asserted a claim to the land (allegedly arising in 1937 during the Kiaan movement). A Section 145 proceeding before the Sub-divisional Magistrate resulted in an order dated 7 June 1939 holding that the defendants were in possession. The plaintiff then instituted a suit for declaration that the land was bakasht and for recovery of possession by evicting the defendants.

The main defence alleged fraud/collusion in the rent decrees, lack of khas possession by the plaintiff, continued possession by the defendants, and a subsequent settlement/renewal of settlement with the defendants. The lower appellate Court found the defendants' settlement case to be untrue but held that both parties had given unsatisfactory evidence on the question of possession. Because the lower appellate Court treated the onus of proof under Article 142 of the Limitation Act as resting on the plaintiff, it held the suit barred by limitation. The plaintiff appealed; this opinion addresses that appeal.

Legal Issues Presented

  1. Whether the Subordinate Judge (and the lower appellate Court) were correct in holding that the suit was barred under Article 142 of the Limitation Act.
  2. Whether the proper statutory provision governing the suit is Article 142 (12 years for dispossession) or Article 144 (limitation where proprietary title is asserted and a limited adverse interest is claimed), given the pleaded title and possession facts.
  3. How the onus of proof as to possession and adverse possession is to be allocated between proprietor-plaintiff and defendant (tenant/trespasser) in a suit for declaration of bakasht status and recovery of possession.

Arguments of the Parties

Appellant's Arguments (Mr. P.R. Das)

  • The lower appellate Court misplaced the onus of proof and erred in holding the suit barred.
  • The suit is, in substance, for declaration of title and confirmation of possession; the cause of action began on 7 June 1939 (the date of the Section 145 order declaring defendants in possession).
  • The suit was governed by Article 144, Limitation Act, not Article 142, and hence the burden lay on the defendants to establish the nature and extent of the right they asserted.
  • Relied on Midnapore Zamindary Co., Ltd. v. Panday Sardar and related authorities to show that where a proprietor proves proprietary title, a presumption of possession arises and the defendant must rebut it by proving adverse possession.

Respondent's Arguments

  • Respondent's counsel relied on a number of authorities (including Dino Monee Debia v. Doorga Pershad; Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty; and a Full Bench decision in Shiva Pd. Singh v. Hira Singh) to support the view that Article 142 may apply and that a plaintiff must prove possession within 12 years or the suit is barred.
  • Specifically, it was contended that no presumption arising from title could be invoked to overcome the unsatisfactory state of the evidence regarding possession.
  • Respondent relied on precedent to argue that a tenant's possession may give rise to application of Article 142 in certain circumstances (e.g., where landlord is deprived of actual possession but not proprietary possession or rent receipt).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Midna pore Zamindary Co., Ltd. v. Panday Sardar (2 Pat. L.J. 506 : A.I.R. (4) 1917 Pat. 471) The High Court held that Article 144 applied where the plaintiff proved proprietary title and thus was entitled to the presumption of possession; defendants must rebut presumption by proving adverse possession. Ramaswami, J. cites this authority to support that Article 144 is the appropriate provision where proprietor title is admitted and that the presumption of possession should be considered when evidence is unsatisfactory.
Sir Rameshwar Singh v. Rit Lal Singh (6 P.L.T. 514 : A.I.R. (12) 1925 Pat. 739) Expounds the same principle as Midnapore — allocation of burden where proprietor's title is admitted and defendant must show tenancy or adverse possession. Referred to as supporting authority for applying Article 144 and placing onus on defendant to show adverse possession or tenancy rights.
Kameshwar Singh v. Faturi Missra (A.I.R. (21) 1934 Pat. 339 : 149 I.C. 453) Held that where plaintiff's proprietary title is admitted and defendant only claims a limited tenancy interest, Article 144 governs and defendant must show date and nature of possession/title. Used to reinforce the proposition that Article 144 (not Article 142) applies when defendant's claim is to a limited interest and the defendant bears the burden to establish adverse possession or tenancy title.
Dino Monee Debia v. Doorga Pershad (21 W.R. 70 : 12 Beng. L.R. 274) Full Bench laid down that mere allegation of tenancy in a written statement does not preclude a defendant from raising the defence of limitation; distinction between pleading tenancy and relying on limitation. The court observed this authority was of limited assistance here because in the present case the defendants had not pleaded the alternative plea of limitation in their written statement; therefore the case was distinguished.
Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty (2 C.L.J. 125) Held that when a tenant takes possession of land outside his tenancy but professes to do so in his character as tenant, landlord is dispossessed in a limited sense and Article 142 would apply; possibly Article 144 where tenant sets up adverse title. Ramaswami, J. notes this authority but regards it as of doubtful application because a later Division Bench in Gopal Krishna v. Lakhiram took a different view; the case is discussed but not relied upon as controlling.
Gopal Krishna v. Lakhiram (16 C.W.N. 634 : 14 I.C. 212) Division Bench held that Article 144 would apply in circumstances similar to Ishan Chandra Mitter; recognized adverse possession of a limited tenancy interest under Article 144. Used to support the proposition that Article 144 may cover adverse possession of a limited interest (e.g., a tenant's claim to encroached land as tenancy).
Raja Mohan Bikram Shah v. Deonarain Mahto (A.I.R. (32) 1945 Pat. 453 : 24 Pat. 379) Case involved dispute whether defendants were raiyats on manhunda rent; lower appellate Court found plaintiff did not prove khas possession within 12 years; High Court accepted finding — an opinion as to onus was characterized as obiter. The court treated dicta about onus in that case as obiter and not directly decisive here; Ramaswami, J. concludes limitation was not material to the decision in that reported case and therefore it does not strongly support the respondent's position.
Shiva Pd. Singh v. Hira Singh (6 Pat. L.J. 478 : A.I.R. (8) 1921 Pat. 237 F.B.) Full Bench decision relied upon by respondent to deny the usefulness of presumption arising from title where evidence is unsatisfactory. Ramaswami, J. notes the Full Bench decision but relies on Matuk Singh v. Tian Sahu to explain limits to its application; the Full Bench principle is not accepted as absolute in all cases of unsatisfactory evidence.
Matuk Singh v. Tian Sahu (2 Pat. 1 : A.I.R. (9) 1922 Pat. 432) Sir Dawson-Miller explained that where evidence from both parties is unsatisfactory but not wholly valueless, the Court may take into consideration the presumption arising from title and the probabilities. Ramaswami, J. relies on this case to justify taking into account the presumption from the plaintiff's title where both parties' evidence on possession is unsatisfactory but not worthless.
Secretary of State v. Sri Rajah Chelikani Ramarao (25 C.L.J. 69 : A.I.R. (3) 1916 P.C. 21) The Privy Council held that the onus of establishing possession for the requisite period lies upon the person asserting such possession; it would be contrary to legal principle to permit the possessor to put the owner to a negative proof. Quoted by Ramaswami, J. to support the proposition that a possessor cannot simply insist that the proprietor must disprove the possessor's length of possession; the onus is on the possessor asserting long possession.

Court's Reasoning and Analysis

The Court began with the factual posture: the lower appellate Court had found both parties' evidence on possession unsatisfactory and concluded, placing the onus on the plaintiff under Article 142, that the suit was barred by limitation.

Ramaswami, J. examined whether that approach correctly applied the Limitation Act and the allocation of onus. He considered the character of the plaintiff's claim (proprietary title — bakasht status and khas possession) and asked whether the presumption of possession arising from the plaintiff's title could be invoked where both parties had given unsatisfactory evidence.

The Court analyzed leading authorities. It accepted the proposition in Midnapore and allied cases that where a proprietor proves proprietary title, a presumption of continued possession arises and the defendant must rebut it by proving adverse possession. The Court observed that in such situations Article 144, rather than Article 142, is the appropriate provision because the dispute may concern adverse possession of a limited interest (or the proprietor's claim to khas possession against a claimant asserting tenancy).

The Court considered respondent reliance on authorities (Dino Monee Debia, Ishan Chandra Mitter, Shiva Pd. Singh) and addressed them as follows:

  • Dino Monee Debia: the Full Bench's rule about pleading tenancy and limitation was distinguished because the defendants in the present case did not plead limitation in their written statement.
  • Ishan Chandra Mitter: the Court noted the principles but regarded the authority as doubtful in light of later Division Bench authority (Gopal Krishna v. Lakhiram) which favored applying Article 144 in similar circumstances.
  • Shiva Pd. Singh (Full Bench): the Court accepted that the Full Bench decision had a limited reach but relied on Matuk Singh to explain that where evidence on both sides is unsatisfactory but not entirely valueless, the presumption arising from title and the probabilities may be taken into account.

The Court also invoked the Privy Council decision in Secretary of State v. Sri Rajah Chelikani Ramarao to emphasize the established principle that the onus of establishing long possession lies on the person asserting it and that it would be contrary to legal principle to allow a possessor to put the proprietor to a negative proof.

Applying these principles to the present record, Ramaswami, J. concluded that the lower appellate Court erred by failing to take into account the presumption of possession arising from the plaintiff's title. Even if Article 142 were applicable, the plaintiff would succeed on the pleadings; however, the authorities established that Article 144 was the appropriate provision and that the suit would not fail until the defendants established adverse possession for the statutory period (either of the entire proprietary interest or of a limited interest).

Holding and Implications

APPEAL ALLOWED

Holding:

  • The decrees of the lower Courts are set aside.
  • The plaintiff is to be granted a decree (for declaration and recovery of possession as pleaded).
  • The appeal is allowed with costs.

Implications:

  • Direct effect: The plaintiff succeeds — the lower courts' findings that the suit was barred under Article 142 are reversed and the plaintiff is granted a decree for the relief claimed.
  • On principle: The Court applied and clarified the allocation of onus in cases where proprietorial title is asserted and both parties' evidence on possession is unsatisfactory; it relied on existing authorities to hold that Article 144 is the appropriate provision in the circumstances of this case and that the defendant must establish adverse possession for the statutory period.
  • The opinion does not purport to lay down novel law; it applies and reconciles existing authorities rather than announcing a new precedent.

Note: This summary is confined strictly to the content and reasoning present in the provided opinion and does not add information beyond that text.

Show full summary ...

    M.A Rauf v. Bodhi Singh And Others

    Ramaswami, J.:— This appeal involves the important question whether the Subordinate Judge was right to hold that the suit was barred under Article 142, Limitation Act.

    2. The dispute relates to 14.68 acres of bakasht land in village Chak Dharampur. The Mouza belonged to Ramadhin Singh and Shyamadhin Singh who on 1st August 1917 executed a sale deed in favour of Safdar Ali who in his turn made a registered wakf deed appointing the plaintiff as mutawalli. The plaintiff brought the suit alleging that in the year 1912 Ramadhin Singh and Shayamadhin Singh had in execution of rent decrees purchased the land and obtained dakhaldehani thereof; that in the survey proceeding the land was recorded as bakhasht; that Safdar Ali continued to be in khas possession after his purchase; that in the year 1937 the defendants set up a false claim to the land on account of the Kiaan movement. A proceeding under S. 145 was instituted in the Court of the Sub-divisional Magistrate who by his order dated 7th June 1939 held that the defendants were in possession of the land. The plaintiff, therefore, brought the suit for a declaration that the land was bakasht and for recovery of possession by evicting the defendants.

    3. The main ground of defence was that the rent decree obtained by Ramadhin Singh and Shayamadhin Singh were fraudulent and collusive, that the plaintiff never obtained khas possession of the land, that the defendants continued to be in possession and on account of a subsequent compromise the landlord settled the land with the defendants at nakdi rent after taking salami. After Safdar Ali purchased the mouza the defendants obtained renewal of settlement on payment of further salami. Upon these contentions the lower appellate Court found that the case of settlement with the defendants was not true and defendants could not claim to be tenants by virtue of the alleged settlement. But on the question of possession, the lower appellate Court held that both the parties had adduced unsatisfactory evidence and since the onus of proof under Article 142 was upon the plaintiff the suit was barred by limitation.

    4. On behalf of the appellant, Mr. P.R Das contended that the lower appellate Court has misplaced the onus of proof and it was erroneous to hold that the suit was barred. Learned counsel maintained that the suit was in substance for a declaration of title and confirmation of possession, the cause of action starting from 7th June 1939 the date of the order of the Special Magistrate under Section 145 of the Cr PC, declaring that the defendants were in possession of the land in dispute. Learned counsel made reference to paras 31 and 33 of the plaint and contended that the suit was governed by Article 144, Limitation Act, and that the burden was upon the defendants to establish the nature and extent of the right asserted. In support of his argument learned counsel referred to Midna pore Zamindary Co., Ltd. v. Panday Sardar, 2 Pat. L.J 506 : (A.I.R (4) 1917 Pat. 471), in which the proprietor of land sued a tenure-holder for recovey of possession of land on which the latter had encroached. The plaintiff claimed that the area in dispute should be declared to be the mal land of the mouza and that he should be awarded khas possession of the same. In the alternative there was a plea that if defendants were found not liable to be ejected it should be declared that the plaintiff was entitled to fair and equitable rent for the land occupied. Defendant 1 contested the suit claiming that the disputed area was ghatwali land and denied that the plaintiffs or their predecessors had any right to or possession of the land in suit. The trial Court gave a decree in favour of the plaintiff but the lower appellate Court set aside the decree of the trial Court on the ground that the plaintiff had failed to prove possession of the land within 12 years of the institution of the suit. On appeal, the High Court held that the suit was not barred and that plaintiffs were entitled to a decree. If Article 142 applied the plaintiff must succeed because the plaintiff having proved his proprietary title was entitled to claim the presumption that he had possession and that his possession continued till within 12 years of the suit. It was for the defendants to rebut the presumption and this they have failed to do. But the learned Judges held that Article 144 really applied to the case and that since the defendant had failed to prove adverse possession the plaintiff was entitled to a decree for khas possession of the land.

    5. The same principle has been expounded in Sir Rameshwar Singh v. Rit Lal Singh, 6 P.L.T 514 : (A.I.R (12) 1925 Pat. 739) and Kameshwar Singh v. Faturi Missra, A.I.R (21) 1934 Pat. 339 : (149 I.C 453). In the latter case Wort, J. referred to the circumstances that it was admitted position that the plaintiff had title and it was also the case of the defendants that had they a title, it was not of the proprietary interest but a limited tenancy interest only as against the admitted proprietor the zamindar. The learned Judge therefore held that the defendant must either show title to tenancy right by contract or by the fact that he has been in possession for the necessary period and the onus was equally upon him to show the date upon which he came in possession and his title began. Such a case was governed by Article 144, not Article 142, and it was impossible for the Judge in trying such a suit to raise any presumption against the plaintiff by reason of the absence of any evidence on the part of the plaintiff.

    6. For the respondent learned counsel placed reliance upon Dino Monee Debia v. Doorga Pershad, 21 W.R 70 : (12 Beng. L.R 274). But this case is not of much assistance for the Full Bench merely laid down that in a suit for possession of land against a tenant who was really a trespasser the defendant merely by alleging tenancy in his written statement did not preclude himself from setting up the defence of the law of limitation. In that case the defendants in their written-statement pleaded a mourusi holding with respect to some of the plots in dispute; and with respect to other plots they set up an independent title claiming them to belong to another taluk than that of the plaintiff. The present case must be distinguished for the defendants have not raised the alternative plea of limitation in their written statement.

    7. For the respondent reference was made to Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty, 2 C.L.J 125, in which the landlord sued the defendant for khas possession of land which lay outside the boundaries of the leases granted by the plaintiff. The learned Judges held that when a tenant took possession of the land outside his tenancy and professed to do so in his character as tenant the landlord was dispossessed in a limited sense, in other words he was deprived of actual or khas possession of the land but not of proprietary possession or possession by receipt of rent. In such a case Article 142, Limitation Act, would apply and the landlord who wishes to eject the defendant must bring a suit within 12 years of his dispossession; if he does not do so, his title to recover actual possession would be barred, although his title to receive fair rent would not be barred, the possession of the tenant, so far as the latter right is concerned having never been adverse. The learned Judges however thought that where the tenant intends the encroachment for his own benefit and sets up a title adverse to the entire interest of the landlord Article 144, Limitation Act might be applicable. The distinction appears somewhat illogical for on principle there is no difference between a case where the person sets up a title adverse to the entire land, lord's interest and a case where he prescribes for the limited interest of a tenant. In any event the authority of this case appears doubtful for in a subsequent case, Gopal Krishna v. Lakhiram, 16 C.W.N 634 : (14 I.C 212), upon almost similar fasts a Division Bench held that Article 144 would apply. It was observed that though a tenant was bound to treat that which was an ercroachment on his landlord's land as held by him under his landlord the landlord was not bound to treat the land on which his tenant encroached as held under a tenancy. But the landlord's right to recover possession of the land encroached upon may be lost by the tenant having adversely to the landlord asserted his title as tenant to the land for more than 12 years. Under Article 144, Limitation Act, there may be adverse possession not only of immovable property but of any interest therein, and a tenant may claim to have been in adverse possession for 12 years of a limited interest in encroached land, viz., a tenancy commensurate with that in the admitted lease between the parties.

    8. On behalf of the respondent learned counsel referred to Raja Mohan Bikram Shah v. Deonarain Mahto, A.I.R (32) 1945 Pat. 453 : (24 Pat. 379) in which the plaintiff sued for khas possession of certain land on the ground that it was his bakasht and that the defendants had no raiyati right. The defendants on the contrary alleged that they possessed the land as raiyati on manhunda rent. The lower appellate Court found that the plaintiff had not proved khas possession within 12 years of the suit and the defendants had been in possession thereof as raiyats on manhunda rent. On appeal to the High Court, Sinha, J. observed that in a suit for ejectment the onus was on the plaintiff to make out his title and his possession within 12 years of the suit. Where his title as proprietor is admitted by the defendants the plaintiff must prove his title in the limited sense of title to khas possession. But with great respect this dictum seems to be obiter since the lower appellate Court had found that the defendant had proved that they were raiyats on manhunda rent and this finding was accepted by the High Court. The test for determining whether a proposition is obiter is whether the decision would have been the same if a word has been inserted in the proposition reversing its meaning, (Wambaugh—Study of Cases, p. 17). Applying this test the question of limitation was not material for the decision of Mohan Bikram Shah v. Deonarain Mahto, A.I.R (32) 1945 Pat. 453 at p. 456 : (24 Pat. 379) the report states:

    “Certainly, it lay on the defendants to prove their tenancy, and the finding recorded by the learned Judge on appeal is to the effect that the defendants had proved their tenancy, and that the plaintiff had failed to prove that the lands ware in his direct possession since after 1921, when the alleged settlements were made by him in favour of the defendants. If the defendants had failed to prove their tenancy, their position on the findings of the learned Additional District Judge, would be that of trespassers, and in that case they would have indefeasible tide not by virtue of the settlements but by adverse possession.”

    9. Upon the pleadings in the present case I am of opinion that the suit is not barred. After examining the record, the lower appellate Court has found that both parties have adduced unsatisfactory evidence as regards possession of the land. But the Court has failed to take into consideration the presumption arising from the title of the plaintiff. For the respondents, it was contended that no such presumption can be called in aid in appraisement of the evidence and reference was made to the Full Banch decision in Shiva Pd. Singh v. Hira Singh, 6 Pat. L.J 478 : (A.I.R (8) 1921 Pat. 237 F.B). But in Matuk Singh v. Tian Sahu, 2 Pat. 1 : (A.I.R (9) 1922 Pat. 432), Sir Dawson-Miller explained the limits to which the principle of the Full Bench decision can be extended and observed that, in a suit for ejectment, where the evidence adduced by both parties, although unsatisfactory is not altogether valueless, the Court is entitled to take into consideration the presumption arising from title and the probabilities of the case.

    10. In this context reference should be made to the Secretary of State v. Sri Rajah Chelikani Ramarao, 25 C.L.J 69 : (A.I.R (3) 1916 P.C 21) in which the Crown claimed an island in the sea but the High Court of Madras dismissed the suit on the ground that the Crown had failed to prove possession i.e, a subsisting title within the period of limitation.

    11. The Judicial Committee disagreed with this view and observed as follows:

    “Their Lordships are of opinion that the view thus taken of the law is erroneous. Nothing is better settled than that the onus of establishing property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say ‘I am here; be your title to the property ever so good you cannot turn as out until you have demonstrated that the possession of myself and my predecessor was not long enough to fulfil all legal conditions’.”

    And later the Judicial Committee goes on to say:

    “It would be contrary to all legal principle thus to permit the squatter to Pat the owner to the fundamental right to a negative proof upon the point of possession.”

    In the present case, the plaintiff would succeed, even if Article 142 is applicable. But the authorities establish that upon the pleadings of the case the appropriate provision would be Article 144 and the suit will not fail until the defendants establish adverse possession for the statutory period either of the entire or limited interest.

    12. Upon these grounds I should set aside the decrees of the lower Courts and order that the plaintiff should be granted a decree. I should accordingly allow the appeal with costs.

    13. Sarjoo Prasad, J.:— I agree.

    D.R.R

    14. Appeal allowed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    M.A Rauf v. Bodhi Singh And Others
    (May 5, 1950)