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Tapesar Raut And Others v. Ram Jatan And Others
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs sued seeking a declaration of title and recovery of possession of plot No. 2743, Khata No. 165, village Dhorlahi, alleging that by two sale deeds dated 5 November 1947 they had purchased the plot from the recorded tenant, Dharichhan Singh (defendant No. 5). The plaintiffs alleged that the defendants (referred to as "defendants first party") interfered with their possession.
The defendants defended the suit by asserting that they were in possession as Shikmidars from Baisakh 1332 Fasli and that they had taken a shikmi settlement from the recorded tenant.
On trial, the trial court held that the sale deeds relied upon by the plaintiffs conveyed no title and held that the defendants were in possession as Shikmidars from 1332 Fasli. The plaintiffs appealed. The subordinate judge (lower appellate court) found the sale deeds genuine and for consideration and held that the defendants had failed to prove twelve years' continuous possession as Shikmidars; the subordinate judge therefore decreed in favour of the plaintiffs for recovery of possession. The defendants then filed a second appeal to the High Court.
In the High Court second appeal, Sahai, J. accepted the defendants' contention that Article 142 of the Limitation Act (and not Article 144) governed the suit; he set aside the lower appellate court's decree and remanded the case to that court to determine whether the plaintiffs or their vendor had been in possession of the disputed land at any time within twelve years of the suit; he directed that if the plaintiffs (or their vendor) failed to establish possession within twelve years of the suit, the prayer for khas possession should be dismissed.
The plaintiffs brought the present appeal under Clause 10 of the Letters Patent of the Patna High Court challenging the judgment of Sahai, J.
Legal Issues Presented
- Whether the appeal under Clause 10 of the Letters Patent of the Patna High Court was competent against the judgment of the learned Single Judge who set aside the lower appellate court's decree and remanded the case for a fresh hearing.
- Which Article of the Limitation Act governed the suit — Article 142 or Article 144 — and, relatedly, where the onus lay with respect to proof of a Shikmi tenant's limited right by adverse possession.
- Whether a judge's setting aside of a lower appellate decision followed by an order for retrial/remand constitutes a "judgment" within the meaning of the relevant Clause of the Letters Patent (as that affects the right to appeal).
Arguments of the Parties
Respondents' Arguments
- A preliminary objection was raised that the appeal under Clause 10 of the Letters Patent was not competent because the learned Single Judge had only remanded the case for a fresh hearing and such an order of remand did not constitute a "judgment" within the meaning of Clause 10.
- The respondents relied on authorities which, they submitted, showed that certain orders or directions by a High Court Judge did not amount to a "judgment" under the Letters Patent; they invoked decisions including the Privy Council decision in Sevak Jeranchod Bhogilal v. Dakore Temple Committee (AIR 1925 PC 155) and the Federal Court decision in Kuppuswami Rao v. The King (AIR 1949 FC 1) to support the contention that the Single Judge's order removing the decree and remanding the case should not be treated as a judgment permitting an appeal under Clause 10.
- The respondents also relied on this Court's earlier decisions (e.g., G.L. Nakphopha and Kartar Singh) where certain High Court orders were held not to be "judgments" within the relevant clause; these were cited to support the preliminary objection, although the Court in the present opinion distinguishes them on the facts.
Appellants' Arguments
The opinion does not contain a detailed account of the appellants' legal arguments beyond the fact that the plaintiffs brought the appeal under Clause 10 of the Letters Patent challenging Sahai, J.'s judgment which set aside the lower appellate decree and remanded the matter.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ajit Chaudhuri v. Janak Lal, AIR 1924 Pat 836 | Where a Judge of the High Court sets aside the decision of the lower appellate court and orders a retrial by that court, that decision amounts to a "judgment" within the meaning of the Letters Patent (per Dawson-Miller, C.J.). | The Court relied on this decision as the ratio decidendi governing the present case to hold that the Single Judge's setting aside of the lower appellate decree and remand amounted to a "judgment" under Clause 10, making the present appeal maintainable. |
| Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155 (Privy Council) | Interpreted the term "judgment" in the Letters Patent of the Bombay High Court contextually, holding in that case that "judgment" meant a decree in civil cases rather than a judgment in the ordinary sense. | The Court held this decision inapplicable to the present matter because it dealt with Clause 39 of the Bombay Letters Patent (appeals to His Majesty in Council) and did not concern the particular clause (Clause 10 / Clause 15 analogues) under consideration in the Patna Letters Patent. |
| Kuppuswami Rao v. The King, AIR 1949 FC 1 | Construction of the phrase "judgment or final order" in section 205(1) of the Government of India Act, 1935. | The Court found this decision not to bear on the interpretation of Clause 10 of the Patna Letters Patent and thus not applicable to the question raised in the present case. |
| Gopinath Pati v. Moheshwar Pradhan, ILR 35 Cal 1090 | Authority supporting the proposition that certain High Court decisions which set aside lower appellate orders and remit for retrial amount to judgments permitting appeal. | Used to support the Court's view that the remand-after-setting-aside in the present case was a "judgment" permitting an appeal under Clause 10. |
| Sital Din v. Anant Ram, ILR 55 All 326 : AIR 1933 All 262 | Full Bench decision consistent with the view that orders setting aside lower appellate decisions and ordering retrial may amount to judgments for the purpose of appeal under the Letters Patent. | Relied on as supporting authority for the maintainability of the present appeal under Clause 10. |
| G.L. Nakphopha v. Administrator-General, (S) AIR 1955 Pat 56 | Held that an order appointing the Administrator-General as administrator pendente lite under Section 247 of the Succession Act was not a "judgment" within Clause 10 of the Letters Patent; consequently no appeal lay under that clause. | The Court distinguished this case on its facts and held it inapplicable to the present case's circumstances where a judge had set aside a lower appellate decree and remanded for fresh hearing. |
| Kartar Singh v. Administrator General of Bihar, AIR 1959 Patna 349 | Held that an order giving directions to the Administrator-General under Section 28 of the Administrator General's Act, 1913, to convey properties could not be treated as an adjudication or as an order creating a right in favour of a third party and was therefore not a "judgment" under Clause 10. | Distinguished by the Court on the facts; not treated as controlling for the present case. |
| Jaldhari Mahto v. Rajendra Singh, AIR 1958 Pat 386 (Full Bench) | Held that Article 144 of the Limitation Act was the proper Article to apply in circumstances similar to the present case and that the onus lay on the defendant to prove that he had acquired the limited right of a Shikmi tenant by adverse possession. | The Court held that this Full Bench decision applied to the present case; the Single Judge's contrary view was inconsistent with it. Applying Jaldhari Mahto, the Court allowed the appeal, set aside Sahai, J.'s judgment, and restored the lower appellate court's judgment and decree. |
Court's Reasoning and Analysis
The Court's reasoning proceeded in two principal stages: (A) the preliminary issue of competence of the appeal under Clause 10 of the Letters Patent, and (B) the substantive limitation/possession issue.
A. Competence of Appeal under Clause 10
The respondents argued that the Single Judge's order merely remanded the case and therefore was not a "judgment" within Clause 10, rendering the appeal incompetent. The Court rejected this objection after a textual and precedential analysis:
- The Court held that Sahai, J. had not merely remanded; he had set aside the decree of the lower appellate court and remanded the case for a fresh hearing. The Court considered the distinction drawn in Ajit Chaudhuri v. Janak Lal (AIR 1924 Pat 836): where a High Court judge sets aside a lower appellate decision and orders a retrial, that course of action amounts to a "judgment" within the Letters Patent and is therefore amenable to appeal under the relevant clause.
- The Court considered and rejected the respondents' reliance on the Privy Council decision in Sevak Jeranchod Bhogilal and the Federal Court decision in Kuppuswami Rao. It reasoned that those authorities concerned different Letters Patent clauses (e.g., Clause 39 or statutory phrases in the Government of India Act) and constructions which were not on point for Clause 10 (or its local equivalents). Thus they did not displace the Ajit Chaudhuri principle as applicable to the facts here.
- The Court also noted supporting authorities from other High Courts (Calcutta and Allahabad) and distinguished local decisions (G.L. Nakphopha and Kartar Singh) which found other categories of High Court orders not to be "judgments" under Clause 10; those were held distinguishable on material facts.
B. Merits — Limitation Article and Onus of Proof
On the merits, the Court recorded that the learned Government Advocate conceded that the Single Judge's view of law was inconsistent with the Full Bench decision in Jaldhari Mahto v. Rajendra Singh (AIR 1958 Pat 386). The Full Bench held that Article 144 of the Limitation Act was the proper provision to apply in circumstances similar to the present case and that the onus lay on the defendant to prove acquisition of the limited right of a Shikmi tenant by adverse possession.
Applying that Full Bench authority, the Court concluded that the Single Judge's contrary approach (which applied Article 142) was erroneous. Consequently, the Court allowed the appeal, set aside the Single Judge's judgment dated 28 May 1956, and restored the lower appellate court's judgment and decree dated 8 September 1951 which had granted relief to the plaintiffs. The Court ordered that there would be no order as to costs of this Court.
Holding and Implications
HOLDING: APPEAL ALLOWED. The Court held that (1) the appeal under Clause 10 of the Letters Patent was maintainable because the Single Judge had set aside the lower appellate court's decree and remanded the matter, and (2) on the merits the Full Bench authority in Jaldhari Mahto applied such that Article 144 of the Limitation Act governed and the onus was on the defendant to prove acquisition of the limited Shikmi right by adverse possession. The Single Judge's judgment dated 28 May 1956 was set aside and the lower appellate court's judgment and decree dated 8 September 1951 were restored.
Direct Consequences
- The decree of the lower appellate court (dated 8 September 1951), which found the plaintiffs entitled to recovery of possession and in accordance with which the plaintiffs were granted the relief they sought, is restored.
- The Single Judge's order (Sahai, J.) that had set aside that decree and remanded the case is set aside.
- There is no order as to costs of this Court.
Broader Implications
The Court based its conclusion on existing precedents, and in particular on a Full Bench decision (Jaldhari Mahto). The opinion does not purport to create a new legal principle; rather it applies controlling precedent to the facts. Accordingly, no new precedent was announced by this decision beyond the application of the cited authorities to the facts of this case.
KE/M.E
Result: Appeal allowed.
1. In the suit out of which this appeal arises the plaintiffs alleged that by two sale deeds dated the 5th November, 1947, they had purchased plot No. 2743 of Khata No. 165 of village Dhorlahi from the recorded tenant Dharichhan Singh, defendant No. 5. The plaintiffs further alleged that the defendants first party interfered with their possession and so they brought the present suit for a declaration of their title and for recovery of possession. The suit was contested by the defendants first party on the ground that the disputed land was in their possession as Shikmidars from Baisakh 1332 Fasli and that they had taken shikmi settlement from the recorded tenant, defendant No. 5. Upon these rival contentions the trial court held that the sale deeds upon which the plaintiffs relied conveyed no title and the trial court further held that the defendants first party were in possession of the land as Shikmidars from 1332 Fasli. The plaintiffs took the matter in appeal, and the subordinate judge who heard the appeal held, in the first place, that the sale deeds upon which the plaintiffs relied were genuine and for consideration. He further held that the defendants first party had failed to prove that the land in suit was in their possession continuously for a period of twelve years as shikmidars. On these findings the subordinate judge held that the plaintiffs were entitled to a decree in the terms they had asked for in the plaint. The defendants came up in second appeal to the High Court. It was argued in the second appeal that the suit was governed by Article 142 of the Limitation Act and not by Article 144 of the Limitation Act. The argument was accepted by Sahai, J. who set aside the decree and judgment of the lower appellate court and remanded the case to the lower appellate court for a finding as to whether the plaintiffs or their vendor had succeeded in establishing that they were in possession of the disputed land at any time within twelve years of the suit. It was also directed by the learned judge that if it was found that the plaintiffs or their vendor had failed to establish their possession within twelve years of the suit then the suit must be dismissed so far as their prayer for Khas possession was concerned.
2. Against the judgment of Sahai, J. the plaintiffs have brought this appeal under Cl. 10 of the Letters Patent.
3. On behalf of the respondents a preliminary objection is raised that the appeal is not competent under cl. 10 of the Letters Patent of the Patna High Court. It was submitted that the judgment of the learned single Judge only remanded the case to the lower appellate court for hearing on merits and the order of remand cannot be said to constitute a judgment within the meaning of Clause 10 of the Letters Patent which is to the following effect:
“10. And we do further ordain that an appeal shall lie to the said High court of Judicature at Patna from the Judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court. Pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act, made on or alter lie first day of February one thousand nine hundred and twenty nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, our Heirs or successors in our or. Their Privy Council, as hereinafter provided. We are unable to accept the argument put forward by the learned Government Advocate as correct. In the present case the learned Single Judge has in second appeal set aside the decision of the lower appellate court granting a decree to the plaintiffs for recovery of possession of the disputed land from the defendants. After setting aside the decree of the lower appellate court the learned Single Judge has remanded the case for a fresh hearing to the lower appellate court in accordance with the principle laid down in his judgment. In these circumstances we think that the judgment of Sahai, J. allowing the second appeal and remanding the case for re-hearing is a judgment within the meaning of cl. 30 of the Letters Patent, and it follows, therefore, that the present appeal under that clause of the Letters Patent is competent.
4. The view we have expressed is borne out by a decision of a division Bench of this High Court in Ajit Chaudhuri v. Janak Lal, AIR 1924 Pat 836. It was pointed out by Dawson-Miller, C.J, in that case that if a judge of the High court without setting aside the decision of the lower Appellate court merely remands the case for the finding of an issue with directions to return that finding before finally disposing of the appeal, then that is not a judgment within the meaning of the Letters Patent, but where the judge sets aside the decision of the lower appellate court and orders a retrial by that court, that decision amounts to a judgment within the meaning of cl. 10 of the Letters Patent, and in such cases an appeal is permissible from that decision. In our opinion the ratio decidendi of this case governs the present case and we hold that the appeal of the plaintiffs under Cl. 10 of the Letters Patent in the present case is maintainable.
5. On behalf of the respondents the learned Government Advocate said that the authority of the decision of the Division Bench in AIR 1924 Pat 336 has been shaken by the decision of the Privy Council in Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155 and the decision of the Federal Court in Kuppuswami Rao v. The King. AIR 1949 FC 1. We do not think that this submission of the learned Government Advocate is correct. The decision of the Privy Council in AIR 1925 PC 155, no bearing on the question presented for determination in this case. In the Privy Council case the question at issue was whether there was right of appeal to His Majesty in council from the judgment of the High Court under Cl. 39 of the Letters Patent of the Bombay High Court. It was held by Sir John Edge in the Privy Council case that the term “Judgment” in the Letters Patent of the High court meant in civil cases a decree and not a judgment in the ordinary sense.
6. Now there is a vital difference in the language of Cl. 39 of the Letters Patent of the Bombay High Court which deals with appeals to His Majesty in Council from the Judgment of the High Court and, Cl. 15 of the same Letters Patent dealing with appeals from decisions of a Single judge or a Division Bench of the same High Court. Clause 39 or the Letters Patent mentions in detail the circumstances in which an appeal is competent to His Majesty in council. It is important to notice that under this clause an appeal is provided against “any final judgment, decree or order of the High Court”. In contrast Cl. 15 of the Letters Patent states that an appeal shall lie to the said High Court from.
“the judgment of one judge of the said High Court or one judge of any Division court in the exercise of appellate jurisdiction.”
7. It is manifest that the judgment of the Privy Council does not refer to Cl. 15 of the Letters Patent of the Bombay High Court and, therefore, it has no application to the present case. The decision of the Federal Court in AIR 1949 FC 1, was also not a case dealing with the interpretation of Cl. 15 of the Letters Patent of the Madras High Court, but it was a case with regard to the construction of the phrase “Judgment or final order” used in section 205(1) of the Government of India Act, 1935. In our opinion the decision of the Federal Court also has no bearing on the question which has arisen for decision in the present case.
8. The view we have taken with regard to the interpretation of cl. 10 of the Letters Patent of the Patna High Court is supported by the decision of the Calcutta High Court in Gopinath Pati v. Moheshwar Pradhan, ILR 35 Cal 1090 and by a decision of a Full Bench of the Allahabad High Court in Sital Din v. Anant Ram, ILR 55 All 326 : (AIR 1933 All 262). Learned Counsel on behalf of the respondents also referred to the decision of this High Court in G.L Nakphopha v. Administrator-General*, (S) AIR 1955 Pat 56 and Kartar Singh v. Administrator General of Bihar, AIR 1959 Patna 349. In the former case it was held by the Division Bench that an order of a Judge of the High Court appointing the Administrator General as the administrator pendent life under Section 247 of the Succession Act was not a judgment within the meaning of Cl. 10 of the Letters Patent and no appeal lay against it under that clause. In the latter case it was similarly held that an order by the High Court giving directions to the Administrator general under section 28 of the Administrator Generals Act 1913, to convey the properties of the deceased to a third party could not be treated either as an adjudication or as an order creating a right in favour of the third party and, therefore, not a Judgment as contemplated by Cl. 10 of the Letters Patent. Both these cases are distinguishable and the principle of those cases cannot be applied to the present case because the material facts of the present case are manifestly different.
9. For these reasons we reject the preliminary objection raised on behalf of the respondents and we hold that the appeal under the Letters Patent is maintainable in the present case under Cl. 10 of the Letters Patent.
10. With regard to the merits of the case it was conceded by the learned Government Advocate that the view of law expressed by the learned Single Judge is not consistent with the decision of a Full Bench of this High Court in Jaldhari Mahto v. Rajendra Singh, AIR 1958 Pat 386). It was pointed out by the Full Bench, in circumstances similar to those in the present case, that the proper Article to apply was Article 144 of the Limitation Act and the onus lay on the defendant to prove that he had acquired the limited right of Shikmi tenant by adverse possession. In our opinion the decision of the Full Bench in AIR 1958 Pat 386 (FB) applies to the present case, and in view of the principle laid down in that decision we hold that this appeal should be allowed and the decision of the learned Single judge, dated the 28th May, 1956, should be set aside and the judgment and decree of the lower appellate court dated the 8th September, 1951, should be restored. We accordingly allow this appeal under the Letters Patent. There will be no order as to costs of this court.
KE/M.E
11. Appeal allowed.
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