Raj Kishore Prasad, J.:— This is an appeal under the Letters Patent, against the judgment of Mr. Justice Misra, affirming the judgment of the Court of appeal below, and dismissing the appeal of defendants 1 to 13, who were the principal defendants.
2. The only question for determination in the present appeal and, which has been canvassed at the bar, is the question of adverse possession. For a proper appraisal and determination of this question, it is necessary to set out briefly the facts:
The plaintiffs-respondents, who are landlords, brought the present suit in ejectment, in respect of plot No. 963, under khata No. 299, in village Poiwan. This khata was recorded as bhaoli kasht land of one Kalicharan Singh, after whose death defendants 1 to 3 came in possession thereof. These defendants, representing their family, consisting of defendants 1 to 13, sold the land to defendant no. 14 on the 21st December, 1923. Defendant No. 14, in his turn, sold the disputed land orally to the plaintiffs in 1927 for Rs. 300/-. The plaintiffs' case is that they came and remained in possession of the land by virtue of the oral purchase from 1927 till the 26th June, 1947. On the 26th October, 1940, they got a registered sale deed executed by defendant No. 14 in their favour. Thereafter, there were criminal proceedings between the parties, which, ultimately, on the 26th June, 1947, resulted in an adverse order passed against the plaintiffs in a proceeding under Section 145 of the Cr PC. The plaintiffs, accordingly, on the 6th December, 1947, filed the present suit for declaration of title, and recovery of possession.
3. The suit was contested by defendants 1 to 3. Their defence was that the sale of 1923 executed by them in favour of defendant No. 14 was a farzi transaction, and defendant No. 14 neither paid any consideration for, nor, did he get possession of the land under it, and the land always remained in their possession. Their further defence was that, the sale deed executed by defendant No. 14 in favour of the plaintiffs in 1940 was a sham transaction. They also denied that there was an oral sale by defendant No. 14 in favour of the plaintiffs in 1927.
4. Defendant No. 14 did not contest the suit, but filed a separate written statement, in which he admitted that the sale of 1923 in his favour was a farzi transaction, and was executed without any consideration. He, however, admitted that in 1927 the disputed land had been sold orally by him to the plaintiffs, at the instance of the defendants 1 to 3, for Rs. 300/- and, that he made over this consideration money to defendant No. 2 after getting it from the plaintiffs. Defendant No. 14 also admitted that the plaintiffs came in possession of the suit lands in 1927, and that at the instance of the plaintiffs he executed a registered sale deed in 1940 in favour of the plaintiffs.
5. The learned Munsif came to the conclusion that the sale deed of 1923 was a farzi transaction, and defendant No. 14 did not get possession of the land conveyed by the sale. He also found that the plaintiffs had failed to prove their possession within twelve years of the suit. On these findings, he dismissed the plaintiffs' suit.
6. On appeal by the plaintiffs, the learned Subordinate Judge reversed the judgment and decree of the first court and decreed the plaintiffs' suit. He agreed with the first court that the sale deed of 1923 was a farzi transaction, but he disagreed with the finding of the first court on the question of plaintiff's possession, and found that the plaintiffs got into possession of the suit land in 1927 by virtue of the oral purchase from defendant No. 14. He further found that defendant No. 14, with the knowledge and consent of defendants 1 to 3, on receiving Rs. 300/-, allowed the plaintiffs to cultivate the lands in 1927.
7. The defendants, therefore, preferred a second appeal to this court, which was heard and decided by Mr. Justice Misra. His Lordship upheld the judgment of the learned Subordinate Judge, but for different reasons, and, therefore, he dismissed the appeal of the defendants.
8. The only argument, which has been put forward in support of the appeal by the learned Advocate General, who appeared for the appellants, is, that the case of plaintiffs' adverse possession since 1927 by virtue of the oral sale was not their case, and, therefore, no issue was raised nor any evidence given, on this point, and, as such, either the case should be remanded, or this new case should not be taken notice of by this Court. In my opinion, this argument is not well founded, and, therefore, it cannot prevail.
9. The above contention is not borne out by the plaint. In paragraph 14 of the plaint, the plaintiffs specifically mentioned that they “have been in possession of the suit land as Bakasht for over 12 years as of right in an open and peaceful manner adversely to the defendants and so they have acquired perfect and indefeasible title to the land in suit by adverse possession and whatever title the defendants alleged had been extinguished.” Besides this paragraph, it will appear from paragraphs 5, 6, 7, 13 and 15 or the plaint that the plaintiffs asserted, in unequivocal manner that the plaintiffs were put in possession of the suit land by defendant No. 14 in the year 1334 Fasli to the knowledge of defendants 1 to 3, and with their express consent the plaintiffs continued in cultivating possession of the said land till 1354 Fasli.
10. In these circumstances, it cannot be said that the plea of adverse possession was not specifically raised by the plaintiffs in their plaint. The defendants-appellants had knowledge of the above case of the plaintiffs in their plaint, and, therefore, they in paragraph 14 of their written statement specifically stated that the allegation of the plaintiffs “in the plaint that these defendants had any knowledge of the alleged oral or registered sale in favour of the plaintiffs by defendant No. 14 or that the plaintiffs ever got possession of the suit lands or held them adversely to the defendants are all false.” Even the first court has mentioned in his judgment that title by adverse possession is also pleaded by the plaintiffs.
11. On the above plea of adverse possession pleaded by the plaintiffs, and denied by the defendants, an issue on adverse possession was framed by the first court on the 19th April, 1948, as issue No. 6, to the following effect:
“is the suit barred by principles of estoppel, waiver and acquiescence and adverse possession?”
12. It appears, however, that at the time of the hearing of the suit the issues were recast, although there is no mention of this fact in the ordersheet of the suit. The following three issues, mentioned in the trial court's judgment, are important, as they, in my opinion, completely cover the question of plaintiff's title by adverse possession. These three issues are nos. 5, 7 and 11. They are as follows:
“5. Is the suit barred by limitation?
7. Was defendant No. 14 ever in possession of the lands in suit and did he give possession of the suit lands to the plaintiff? Were the plaintiffs or defendant No. 14 in possession of the suit lands within 12 years of the suit?
11. Had defendant No. 14 any authority from defendants 1 to 3 to execute a sale deed in respect of the suit lands and did they receive any consideration money from defendant No. 14 or the plaintiffs or give possession of the suit lands to the plaintiffs in 1927? Is the kebala in favour of the plaintiffs valid and binding on the defendants?” In my opinion, therefore, the first branch of the argument of the learned Advocate General that the case of adverse possession was not pleaded by the plaintiffs, and, that it was a new case, and, no issue had been framed thereon, on the facts stated above, must be rejected.
13. In reply, Mr. G.P Das, appearing for the plaintiffs-respondents, has argued that where a suit is based on title extended over more than twelve years, plea of adverse possession need not be specifically pleaded as it is included in the plea of title. In support of his contention, he has relied on Vasudeva Padhi Khadanga Garu v. Maguni Devan Bankhi Mahapatrulu Garu ILR 24 Mad 387 : 28 Ind App 81 (PC) (A), and Municipal Board, Etawah v. Mt. Ram Sri, AIR 1931 All 670 (B) which has followed this Privy Council case. The contention of Mr. Das is well founded, and must be accepted. As observed by Lord Davey in the above Privy Council case:
“It is immaterial for the present purpose which article it comes under. That being so, the appellant could not have brought an action after the expiration of three years after he attained his majority (Say) 1873. Then comes in section 28, by which his right to the property is extinguished at the determination of the period limited for bringing a suit for possession of it. The point does not require to be expressly pleaded, as it is only evidence of the respondent's title; …………….”
14. In the present case, the plaintiffs throughout pleaded that they were put into possession by defendant No. 14 with the consent of defendants 1 to 3 in 1927, and, they continued in possession till the adverse order passed against them in the criminal proceeding, after they got the registered sale deed in 1940. These facts clearly establish that the plaintiffs claimed to be in exclusive possession for more than the statutory period of limitation, and, as such, the defendants' title was extinguished by virtue of section 28 of the Indian Limitation Act. Plaintiffs by completing adverse possession extending over twenty years completed that title in themselves against the defendants appellants. But that question in my opinion, does not arise in this case, as it undoubtedly was a matter of controversy in the courts below, and, in fact it forms the subject of the three issues stated above.
15. The position is well established that a transferee having acquired title under an invalid transaction, and continuing in possession for more than twelve years, would be deemed to have acquired a perfectly good title to the property. In the present case, although the oral sale by defendant No. 14 to the plaintiffs in 1927 for Rs. 300/- was an invalid sale, as it was not under a registered document and, therefore, it did not amount to a legal sale of the land to the plaintiffs, it could nevertheless be referred to as explaining the nature and character of the possession of the plaintiffs thenceforth from 1927 right up to till at least the 26th June, 1947, when an adverse order was passed against the plaintiffs in the proceeding under Section 145 of the Cr PC.
16. The above view is supported by the decision of the Privy Council in the case of N. Varada Filial v. Jeevarathnammal, 46 Ind App 285 : (AIR 1919 P.C 44) (C). In my opinion, therefore, the plaintiffs' possession from 1927 for upwards of twelve years amounted in law to their adverse possession against the defendants. The two courts of appeal below found that the plaintiffs were put in possession in 1927, by defendant No. 14 with the knowledge and consent of defendants 1 to 3, who represented their family consisting of Themselves and defendants 4 to 13.
17. The next branch of the argument of the learned Advocate General is that no evidence was adduced on the question of adverse possession by the parties as it was a new case which was made out at the appellate stage.
18. In my opinion, there is no substance in this contention also, because after a consideration of the evidence on the record, oral and documentary, the first Court of appeal came to the conclusion that in 1927 defendant No. 14 received Rs. 300/- from the plaintiffs and allowed them to cultivate the suit land with the knowledge and consent of defendants 1 to 3. In my opinion, therefore, Mr. Justice Misra correctly held that in the present case adverse possession was pleaded, and the finding of the court of appeal below on possession was based on a consideration of the oral and documentary evidence on the record and the circumstances and the probability of the case, and that finding of possession is correct.
19. I would, therefore, reject all the contentions of the learned Advocate General.
20. For the reasons given above I agree with the decision of Mr. Justice Misra, and, accordingly, his judgment is affirmed.
21. In the result, the appeal fails and is, accordingly dismissed with costs.
22. Ramaswami, C.J:— I agree.
D.H.Z
23. Appeal dismissed.