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Ramanuj Rai v. Dakshineswar Rai
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs sued for declaration of title and possession of 15 cottahs of land originally belonging to one Rakhal. The plaintiffs' case was that their father purchased the land on 25 February 1901; the sale-kobala stated the land was sold to satisfy a mortgage executed by Rakhal in 1889. Earlier, in 1888, Rakhal had mortgaged the plot to Khelaram by a usufructuary mortgage and put Khelaram in possession until 1314 (a date referenced in the opinion). After purchase the plaintiffs' father paid off Khelaram and entered into possession in 1901; the plaintiffs alleged continuous possession until December 1917 when the defendants dispossessed them.
The defendants' version traced a different chain: they alleged Rakhal mortgaged the land to a person named Rooke (in 1284 in the local era), who obtained a decree and purchased the property (1891 by calendar references), thereafter selling to Dinesh (1892), from whom Ramesh (who had a mokurari interest) purchased in 1900; Ramesh mortgaged to Bhowni Ranjan Sen who obtained a decree and the property was ultimately sold in execution and passed through Harmukh Marwar, from whom the defendants bought it on 28 Kartick 1313 and remained in possession.
At trial the defendants did not produce their original title documents, asserting they were filed in a High Court appeal; instead they placed a High Court paper-book (containing translations of those documents) in evidence. The trial Court marked that paper-book as an exhibit "after objection." The trial Court did not rely on those documents because the originals were not produced. On appeal the Subordinate Judge held the paper-book inadmissible as evidence but nonetheless examined it and found against the defendants on the facts; the present appeal followed.
Legal Issues Presented
- Whether the High Court paper-book (containing translations of original title documents) was admissible as evidence when the originals were not produced, and if it was not admissible whether the appellants should have been given an opportunity to produce the originals.
- Whether the plaintiffs acquired title by adverse possession against the defendants given (a) the plaintiffs' entry into possession in 1901 after paying off a usufructuary mortgagee (Khelaram), and (b) the defendants' claim of title through prior transactions and mortgages (including a first purchaser or mortgagee who had previously obtained possession or decree).
Arguments of the Parties
Defendants-Appellants' Arguments
- The defendants traced title through a chain of mortgages, decrees and sales (including a purchase by Rooke and subsequent transfers), ultimately asserting they derived title from Rakhal's predecessors and were in lawful possession since their purchase in Kartick 1313.
- They explained the absence of original title documents at trial by saying those documents were filed in a High Court appeal; consequently they tendered the High Court paper-book (which contained translations) as their evidence of title.
- They contended that because the trial Court admitted the paper-book, they did not consider it necessary to produce originals; and when the Appellate Court held the paper-book not to be evidence, the defendants argued they should have been given an opportunity to produce the original documents.
- On the question of possession, the defendants argued that because a usufructuary mortgage in favour of Khelaram subsisted (entitling Khelaram to possession until its termination), the plaintiffs' possession in 1901 could not be adverse as against Rakhal or those deriving title from him (including the defendants), until the usufructuary mortgage period ended.
Plaintiffs-Respondents' Arguments
- The plaintiffs asserted that their father purchased the property in 1901 and that the sale-kobala recited the sale was in order to pay off a mortgage executed by Rakhal in 1889; the plaintiffs' father paid off Khelaram (the usufructuary mortgagee) and entered into possession in 1901.
- The plaintiffs maintained they were in continuous possession from 1901 until dispossession by the defendants in December 1917, and that such possession gave them title by adverse possession against the defendants and their predecessors.
- They objected to the reception of the High Court paper-book as evidence of title on the ground that the original documents were not produced.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Narain Sahoo v. Bandi Prasad | The principle that a first mortgagee in possession under a prior sale may shield himself under his mortgage and purchase, and that a puisne mortgagee's right is limited to a right of redemption or sale of the mortgaged premises subject to the lien of the first mortgagee or auction-purchaser. | The Court (Mukerji, J.) noted the authority and its proposition, but concluded that the particular findings of fact on possession in the instant case meant the principle had little bearing on the possession issue before the Court: the plaintiffs' entry into possession and payment off of the usufructuary mortgagee made their possession adverse regardless of the rights of prior mortgage purchasers. |
Court's Reasoning and Analysis
The opinion contains two principal strands of analysis: (1) the admissibility and handling of the High Court paper-book as evidence, and (2) the facts and legal effect of possession and adverse possession in the context of prior mortgages and sales.
1. Admissibility of the paper-book and procedural handling:
- The judges agreed that the paper-book (a compilation of translations of original documents filed in the High Court) is "no evidence at all, either primary or secondary" unless a proper foundation for its reception as secondary evidence is established.
- Suhrawardy, J. observed that although one court's erroneous admission of such a paper-book does not necessarily preclude another court from requiring production of originals, the appeal was decided on other grounds and it was therefore unnecessary to resolve fully whether the appellants should have been given an opportunity to produce originals.
- Mukerji, J. strongly criticized the trial Court procedure of marking the paper-book as an exhibit "subject to objection" without a contemporaneous decision: he stressed the rule that objections to admissibility should be dealt with at the time (or at the earliest opportunity) so that the party tendering evidence can remedy defects if possible. He described the practice of leaving objections undecided as prejudicial and deserving of condemnation.
- Mukerji explained that although the paper-book by itself would not constitute admissible secondary evidence, it could in principle contribute to proof if accompanied by proper oral or other foundational evidence showing why secondary evidence was admissible. No such foundation appears to have been established in the record considered by the Court.
2. Possession and adverse possession analysis:
- Both the Munsif and the Subordinate Judge found the plaintiffs to have been in possession of the land from 1901 until dispossession in 1917 (the opinion also records these years in local era numerals — e.g., 1308 to 1324 as used by Mukerji, J.).
- The Court examined the defendants' contention that the plaintiffs' 1901 possession could not be adverse because Khelaram, as usufructuary mortgagee, had the right to possession until the termination of that mortgage (stated to run until 1314 / April 1908). The defendants argued that until the usufructuary mortgage terminated, adverse possession could not run against those deriving title from Rakhal (such as Rooke and his transferees).
- Suhrawardy, J. rejected this contention: he reasoned that the plaintiffs' father had redeemed Khelaram (paid him off) and took actual possession pursuant to his purchase; once Khelaram's possession and mortgage operation ended by payment, Rakhal or those claiming under Rakhal could not contend that Khelaram remained entitled to possession so as to postpone their right to take khas possession. As the plaintiffs were found in possession from 1901 to 1917, they acquired title by adverse possession against the defendants.
- Mukerji, J. reached the same conclusion on possession. He set out the sequence of mortgages (Rooke — simple mortgage, Khelaram — usufructuary mortgage, plaintiffs' father — simple mortgage) and noted that rights of puisne mortgagees not made parties to execution proceedings remain unaffected by those decrees; nonetheless, on the facts the plaintiffs' father treated a decree relied upon by others as a nullity, paid off Khelaram and entered possession as an outsider. From the time he entered possession he was in adverse possession; on those findings the question of what rights Rooke had after his purchase against Khelaram and the plaintiffs' father had little bearing on the possession question.
- Given the factual findings preferring the plaintiffs' evidence of possession, the Court concluded that the plaintiffs had acquired title by adverse possession and that the appeal failed on this ground.
Holding and Implications
APPEAL DISMISSED WITH COSTS
Implications and direct effect:
- The trial and appellate findings that the plaintiffs were in possession from 1901 until dispossession in 1917 were upheld, and on those facts the plaintiffs were held to have acquired title by adverse possession against the defendants and their predecessors.
- The Court criticized the trial Court's practice of marking challenged documentary material "subject to objection" without deciding the objection, and reiterated the importance of resolving admissibility objections at the time they are taken so that defects may be remedied if possible.
- No broader new legal principle or precedent was announced beyond application of existing principles concerning adverse possession, mortgagee rights in possession, and proper handling of objections to documentary evidence; the immediate consequence is dismissal of the defendants' appeal and confirmation of the plaintiffs' decree and right to costs.
Note: This summary is based exclusively on the text of the provided opinion and does not add information not contained therein.
The Judgment of the Court was as follows;—
Suhrawardy, J.:— In this case the Defendants are Appellants. Both the Courts below decreed the Plaintiffs' suit which was one for establishment of their title to and recovery of possession of 15 cottahs of the land in suit. The property originally belonged to one Rakhal. The Plaintiffs' case is that on the 25th February 1901 the Plaintiffs' father purchased it along with other plots from Rakhal. The kobala recites that the property was sold in order to pay off a mortgage executed by Rakhal in favour of the Plaintiffs' father in 1889.
It further appears that in 1888 Rakhal had mortgaged this plot to one Khelaram by way of usufructuary mortgage and put him in possession of it under which the mortgagee was to remain in possession up to 1314. The Plaintiffs' father, after having purchased the land, paid off Khelaram and entered into possession of it in 1901. The Plaintiffs allege that they were in possession all along from that date till December 1917 when they were dispossessed by the Defendants. There were proceedings started under sec. 145, Cr. P.C, which terminated in favour of the Defendants and hence this suit. The Defendants' case is that the property in suit belonged to Rakhal who in 1284 mortgaged it to one, e.g, Rooke who obtained a decree on the mortgage and purchased the property in 1891. In 1892 Rooke sold it to Dinesh from whom Ramesh, who held a mokurari interest in the property bought by Rooke, purchased it in 1900. Ramesh mortgaged the property to one Bhowni Ranjan Sen who obtained a decree on the mortgage and in execution of the decree the property was purchased by one Harmukh Mar war in from whom the Defendants purchased it on the 28th Kartick 1313 and since then they are in possession of it. The Defendants did not produce their documents of title but stated that they were filed in a certain case in the High Court. No attempt was made to call for the documents from the High Court but the paper-book prepared in the High Court in which translations of those documents were inserted was put in on behalf of the Defendants. The Plaintiffs objected but the trial Court marked the paper-book as an exhibit in the case with the remark “after objection.” At the hearing the trial Court did not take into consideration the documents in the paper-book as the original documents were not placed before it. On appeal the Subordinate Judge held that the paper-book was not admissible in evidence but he looked into the paper-book and on a consideration of certain facts he found against the Defendants.
The first point that is argued before us is that when the Court below was of opinion that the paper-book should not have been admitted in evidence, the Defendants should have been given an opportunity of producing the original documents. They allege that the trial Court having admitted the paper-book they did not consider it necessary to produce the original documents and the Appellate Court being of opinion that the original documents should have been produced and that the paper-book was no evidence, opportunity should have been given to them to produce the original documents. This question raises a question of some intricacy inasmuch as the paper-book is, in my opinion, no evidence at all, either primary or secondary. It may be, however, conceded that in the interest of justice, one Court having committed a mistake in admitting the document, another Court when it was of opinion that such a document should not have been admitted should have given an opportunity to the Appellants to produce the original documents. It is not necessary to enter into this matter further as in my opinion the appeal fails on the ground of limitation. It is found that the Plaintiffs came into possession of this land in 1901. They were dispossessed in 1917. On these facts the Munsif found that the Plaintiffs succeeded, irrespective of the title which they have proved, in proving adverse possession against the Defendants and their predecessors. The learned Subordinate Judge is also of opinion that the evidence of possession adduced on behalf of the Plaintiffs is preferable to that produced on behalf of the Defendants and he has found that the land was in possession of the Plaintiffs from 1901 till their dispossession in 1917. In view of these findings he dismissed the appeal. In this connection, it is argued before us, that the Plaintiffs' possession in 1901 need not be adverse against Rakhal and therefore against the Defendants who derived their title from Rakhal. It is said that in 1901, the property was in possession of Khelaram by virtue of the usufructuary mortgage executed in his favour by Rakhal. Rakhal and his successors in title, the Defendants or their predecessor, were therefore not entitled to take possession of the property until the termination of the usufructuary mortgage in favour of Khelaram until the end of 1314 or April 1908. I am unable to accept this contention. The Plaintiffs' father redeemed the mortgage in favour of Khelaram and took actual possession of this property by virtue of his purchase. According to the Defendants' case in 1901 when Rakhal sold this property to the Plaintiffs' father he had no interest left in it. The Plaintiffs' father was then for all intents and purposes a trespasser so far as the Defendants were concerned. He came into possession of the property as a trespasser and by paying off Khelaram he obtained actual possession of it. Khelaram's mortgage having come to an end in 1901, he being paid off, Rakhal or the Defendants who allege to have derived their title from him, cannot say that they had no right at all to take direct possession of the property in 1901. The only bar to their taking khas possession of the property was the usufructuary mortgage executed in favour of Khelaram. When that mortgage was ertinguished or the operation of it terminated, by any means whatsoever, the Defendants cannot say that Khelaram was still entitled to possession and their title to khas possession was delayed till the entire period of usufructuary mortgage. In this view of the matter, the finding of the Courts below being that the Plaintiffs were in possession from 1901 to 1917, it must be held that they acquired a good title by adverse possession against the Defendants. I am accordingly of opinion that this appeal fails on the second ground mentioned above and should be dismissed with costs.
Mukerji, J.—I agree that the appeal should be dismissed with costs and desire to add a few words.
But for the opinion which I have formed on the question of possession I should have felt bound to remand the case to enable the Defendants-Appellants a further opportunity of adducing documentary evidence. They put in a High Court paper-book in a certain first appeal as secondary evidence of the contents of some documents. The paper-book by itself would not be secondary evidence of the contents of those documents, but if a proper case were made out for the reception of such evidence then in conjunction with the requisite oral evidence it would prove the said contents. Objection to the reception of the paper-book in evidence was taken on behalf of the Plaintiffs but that objection was not dealt with at the time. The paper-book was marked as an exhibit with the endorsement that it was objected to. The order sheet contains a simple order that it was marked as an exhibit, while the list of exhibits shows that it was admitted subject to objection. It will be observed that the column provided for the remarks in the said list is headed “whether admitted after or without objection.” This is as it should be, for all objections as to the admissibility of evidence should be dealt with at the time of its reception or at any rate at the earliest possible opportunity,—a rule which has been repeatedly enjoined in reported decisions. The reason of the rule is that if the Court allows the objection, the party tendering the evidence may take such steps as he may be advised to get the lacunae remedied. The expression “subject to objection” means that the objection remains undecided. It may be that in some cases, evidence has to be received subject to objection in anticipation of other evidence which, it is hoped, will be forthcoming and which if produced will remove the objection. In such cases a final decision on the objection must be recorded before the Court proceeds to judgment. Omission in this respect is likely to prejudice the party producing the evidence by letting the matter remain in a dubious state and then depriving the party tendering the evidence of an opportunity of making up the defects which in many cases he would be ready to do if he is told that the objection is allowed. In the present case it is only in the judgment of the trial Court that there is any indication that the Court is not satisfied as to the admissibility of the evidence. This is a procedure which deserves to be condemned.
On the question of possession, however, I am decidedly against the Appellants' contention. The mortgages in order of sequence were as follows:— (1) Simple mortgage in favour of Rooke, (2) usufructuary mortgage in favour of Khelaram and, (3) simple mortgage in favour of the Plaintiff's father. At the date of the suit on Rooke's mortgage the other two mortgages were in existence, but the said mortgagees were not made parties to the suit and the right of the puisne mortgagees who were not parties to the suit remained unaffected by the decree and the proceedings in execution thereof. The Appellants' chief contention is that so long as the usufructuary mortgage in favour of Khelaram subsisted, adverse possession could not run as against. Rooke or his transferees—the Appellants being such transferees—and as an authority for this proposition reliance is placed] upon certain decisions, notably that of this Court in the case of Ram Narain Sahoo v. Bandi Prasad , in which it is observed that a first mortgagee in possession under a prior sale may always shield himself under his mortgage and his purchase, authough his right to possession may be defective and that the puisne mortgagee's right is limited to a right of redemption or sale of the mortgaged premises subject to the lien of the first mortgagee or auction-purchaser on a decree obtained by the latter. If Rooke could obtain possession under his purchase the rights of the parties would have been regulated by this rule. The findings of the Courts below indicate, and indeed it is stated to be one of the admitted features of the case, that the property was at the time of Rooke's purchase and thereafter in the possession of Khelaram, the usufructuary mortgagee. The Plaintiffs' father treated this decree as a nullity, ignored the rights of Rooke, purchased the property in satisfaction of his own mortgage, and also paid off Khelaram and came into possession. He acquired no title under his purchase and came in as an outsider and possibly a trespasser; and the fact that lie chose to pay off Khelaram makes no difference. Prom the point of time that he came to be in possession, he was in adverse possession. This was in 1308, and from that time till 1324 when the Plaintiff was dispossessed, the Plaintiffs' father and then the Plaintiffs were in possession adversely to the Defendants. What rights Rooke had after his purchase as against Khelaram and the Plaintiffs' father as puisne mortgagees is a question which has hardly any bearing on the question of possession.
H.D.C
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