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Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy

Calcutta High Court

Mar 2, 1922

Judgment

Subsequent
References

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Judgment Summary — Mookerjee, J.

Factual and Procedural Background

The dispute concerns a tract of land of 1,700 bighas created by the recession of the Padma River. The plaintiff claimed the land as reformation in situ of an estate in which he held a share (specified as 5 annas 16 gundas 2 karas and 2 krant). He alleged that his title was declared in earlier litigation and that he had been placed in possession under execution of that decree, but was later dispossessed pursuant to an order under section 145 of the Criminal Procedure Code (CrPC). The plaintiff sought a declaration of title, recovery of possession, and mesne profits.

Procedural history appearing in the opinion:

A prior suit was instituted in 1899 by the plaintiff for declaration of title and recovery of possession with mesne profits. At that time the defendants held a periodic settlement of the land. The Subordinate Judge awarded a decree to the plaintiff; that decree was ultimately confirmed by this Court (subject to a variation not material here).
The decree of 13 December 1906 was executed and the plaintiff was put in possession on 15 June 1907.
The plaintiff was dispossessed on 1 March 1913 by an order under section 145 CrPC holding that the defendants and their tenants were in occupation of the tract.
A new suit by the plaintiff was instituted on 22 March 1916 (the present suit), and the Subordinate Judge again gave the plaintiff a decree for possession and mesne profits.
The defendants appealed; the present opinion is on that appeal.

Legal Issues Presented

Whether the trial Court had jurisdiction over the subject-matter of the litigation (disputed river-channel boundary between Rajshahi and Nadia).
Whether the plaintiff had an enforceable cause of action absent a settlement from the Revenue authorities.
Whether the suit was barred by limitation under Article 45 of the Schedule to the Indian Limitation Act (i.e., whether it was instituted within three years from the date of last settlement with the defendants).
Whether, given the nature of the property, partition could be effected by a Civil Court.
Whether the plaintiff was entitled to a decree for mesne profits (specifically, whether the defendants had ousted the plaintiff or merely exercised coparcenary rights).

Arguments of the Parties

Plaintiff's Position

The plaintiff asserted that he held title as reformation in situ of an estate in which he had a definite share, and that this title had already been declared in earlier litigation.
He relied on the earlier decree and execution placing him in possession (decree of 13 December 1906; possession on 15 June 1907).
He contended that he was subsequently dispossessed by an order under section 145 CrPC and therefore sought declaration, possession and mesne profits in the present suit.
Implicitly, the plaintiff maintained that an enforceable cause of action existed notwithstanding the absence of a Revenue settlement at the time of the new suit.

Contesting Defendants / Appellants' Arguments

The trial Court lacked jurisdiction over the subject-matter, because the disputed land lay in the area assigned to the Nadia district rather than Rajshahi (contention founded on the location relative to the main channel of the Padma).
The plaintiff had no enforceable cause of action because he had not obtained settlement from the Revenue authorities and could not enforce title until the expiry of the defendants' settlement.
The suit was barred by limitation under Article 45 of the Limitation Act, as it was not instituted within three years of the last settlement with the defendants.
No partition could be effected by the Civil Court by reason of the nature of the property.
The plaintiff was not entitled to mesne profits because the defendants had not exceeded their rights as coparceners (i.e., they had not ousted the plaintiff).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maharaja Rajendur Pertab Sahee v. Lalljee Sahee	The Judicial Committee's principle that the nature of title is not affected by holding land from the Crown under a periodical settlement (i.e., periodic settlement does not alter the nature of title).	The court relied on this principle to hold that the plaintiff's title and enforceable cause of action were not defeated by the absence of a current Revenue settlement at the date of instituting the suit.
Raghoobur Dayal Sahoo v. Kishen Pertap Sahee	Same line of authority as above (the Judicial Committee's treatment confirming that periodic settlements do not affect the nature of title).	Used together with the Maharaja case to support the proposition that title established in earlier litigation remained effective notwithstanding periodic settlements.
Abdul Kadir v. Hamid Meah	Referenced in relation to suits concerning Revenue authorities' orders—specifically, the case concerns proceedings to set aside Revenue decisions/refusals of settlement.	The court explained that Abdul Kadir v. Hamid Meah did not apply because the present suit was not one to set aside an order of the Revenue authorities refusing settlement; therefore the precedent did not bar the suit.
Bepinbehary Mitter v. Lala Bhugwat Sahai	Cited by the defendants in support of the proposition that partition could not be effected by a Civil Court given the nature of the property.	The court treated this decision as distinguishable on the facts and therefore did not accept the defendants' reliance upon it for denying partition in the present case.
Hemadri v. Ramani (Full Bench)	Authority relevant to the power of the Civil Court to effect partition in cases of this nature (as applied by the court).	The court held that the present case was governed by the Full Bench decision in Hemadri v. Ramani and, on that basis, found nothing to prevent partition by the Civil Court here.

Court's Reasoning and Analysis

The court addressed each of the five grounds of attack in turn and applied legal principles and material facts from the record without introducing external facts.

1. Jurisdiction. The defendants argued the property lay within Nadia rather than Rajshahi because of the river channels. The Subordinate Judge found that, although the land lay south of one channel, that channel was a subsidiary channel and not the main channel of the Padma, so the Rajshahi Court had jurisdiction. The Court of Appeal noted that no materials (e.g., a map) were placed before it to show the lower Court's conclusion to be erroneous, so it would not dissent. Moreover, the court invoked sections 18 and 21 of the Code of Civil Procedure (CPC): even if doubt existed about whether jurisdiction lay in Rajshahi or Nadia, the decree could not be set aside because it had not been shown that a failure of justice occurred. Consequently the jurisdictional objection failed.

2. Enforceable cause of action without Revenue settlement. The defendants argued that the plaintiff could not sue until he obtained a settlement from Revenue. The court rejected this, relying on the prior 1899 litigation in which the plaintiff obtained a decree (confirmed by this Court) and actual possession and mesne profits. The court cited the Judicial Committee authorities (Maharaja Rajendur Pertab Sahee and Raghoobur Dayal Sahoo) stating that periodical settlements do not affect the nature of title; thus the plaintiff had an enforceable cause of action even without a current settlement. The court observed that the plaintiff had been placed in possession after the earlier decree and was later dispossessed by the section 145 CrPC order; it was therefore open to him to seek recovery in the present suit.

3. Limitation under Article 45. The defendants contended the suit was barred under Article 45 of the Limitation Act (three years from last settlement). The court found no force in this contention because the suit's object was to recover possession, not to set aside any award or act of the Revenue authorities. The court distinguished Abdul Kadir v. Hamid Meah on that basis, holding that Article 45 did not bar the suit in these circumstances.

4. Partition by Civil Court. The defendants argued that partition could not be effected by the Civil Court given the nature of the property and relied on Bepinbehary Mitter v. Lala Bhugwat Sahai. The court found that that authority was distinguishable and that the plaintiff's title was not made precarious by the periodic settlement, so there was nothing in the nature of the property that precluded partition. The Full Bench decision in Hemadri v. Ramani was said to govern the case, and therefore the fourth contention failed.

5. Mesne profits. The defendants contended the plaintiff should not get mesne profits because they had not ousted him. The Subordinate Judge had found that the defendants were in exclusive possession through their tenants and that the section 145 order had, in effect, dispossessed the plaintiff. The defendants' stance in the litigation—that the plaintiff was not entitled to possession until expiry of the defendants' settlement—supported the lower court's conclusion. The appellate court agreed that mesne profits were rightly awarded.

Having rejected each of the appellants' contentions on the bases summarized above, the court concluded the appeal must fail.

Holding and Implications

APPEAL DISMISSED.

Direct consequences:

The decree of the Subordinate Judge in favour of the plaintiff for recovery of possession and for mesne profits is upheld.
The appeal is dismissed with costs, including reserved costs, as stated by the court.

Broader implications: The opinion does not purport to establish a new legal precedent beyond applying existing authority (including the Judicial Committee decisions and the Full Bench decision in Hemadri v. Ramani) to the facts. The court did not articulate any novel legal principle; its decision affirms that (a) a plaintiff's title established in prior litigation can be enforced notwithstanding absence of a current Revenue settlement and (b) the Civil Court can order partition and mesne profits in such circumstances where the plaintiff has been dispossessed.

Show all summary ...

Mookerjee, J.:— The subject matter of the litigation which has culminated in this appeal is a tract of land, of 1, 700 bighas in area, formed by the recession of the rival Padma. The case for the plaintiff was that the disputed land was reformation in situ of an estate wherein he had a share of 5 annas 16 gundas 2 karas and 2 krant. He alleged that although his title to the property was declared in a previous litigation and he was placed in possession in execution of the decree made therein, he was subsequently dispossessed by virtue of an order made under section 145 of the Cr PC. He consequently asked for declaration of his title as well as a decree for possession and mesne profits.

2. The contesting defendants resisted the claim on a variety of grounds, namely, first, that the Court had no jurisdiotion over the subject-matter of the litigation, secondly, that whatever the title of the plaintiff might be, he could have mo cause of action till the expiry of the settlement already obtained by the defendants from the Revenue authorities thirdly, that the suit was barred by limitation; fourthly, Shat no partition could be effected by the Civil Court, and fifthly, that in any event, the plaintiff was not entitled to a decree for mesne profits inasmuch as the defendants did not exceed their rights as coparceners. The Subordinate Judge overruled these contentions and gave the plaintiff a decree for possession and mesne profits.

3. On the present appeal, the decree of the Subordinate Judge has been assailed on five grounds; viz., first, that the trial Court had no jurisdiction over the subject-matter of the litigation; secondly, that as the plaintiff had not obtained settlement from the Revenue authorities, he had no enforceable cause of nation; thirdly, that the claim was barred under Article 45 of the schedule to the Indian Limitation Act inasmuch as it had not been instituted within three years from the date of last settlement with the defendants; fourthly, that in view of the nature of the property no partition thereof could be effected by the Civil Court; and fifthly, that no decree for mesne-profits could be made in favour of the plaintiff. In our opinion, none of these contentions can be sustained.

4. As regards the first point, it appears that on the 10th March 1875 a notification was issued by the Government of Bengal which defined the river Padma as the boundary between the districts of Rajshahi and Nadia. The case for the plaintiff is that at the date of the institution of the suit, i.e on the 22nd March 1916, the disputed property lay towards the north of the main channel of the Padma and was consequently within the jurisdiction of the district Court at Rajshahi. The case for the contesting defendants on the other hand is that the property lay towards the south of the main channel and was consequently within that jurisdiction of the district Court at Nadia. The Subordinate Judge has found that Although the property lay towards the south of one of the channels of the Padma, that Channel was not the main but only a subsidiary channel and that consequently the trial Court had jurisdiction over the subject-matter of the litigation. No materials have been placed before us to show that the conclusion of the Court below was in fact erroneous. Indeed, as no map has been prepared in this case it is impossible for us to say whether the channel which lay towards the north of the disputed land was the main Channel or a subsidiary Channel of the river. We are, therefore, not in a position to dissent from the view taken by the Subordinate Judge. It may further be observed that in view of the provisions of sections 18 and 21 of the CPC, the contention of the defendants cannot possibly prevail; even if it be assumed that it is doubtful whether the property lay within the jurisdiction of the Rajshahi Court or the Nadia Court the decree of the Subordinate Judge cannot be set aside, as it has been neither suggested nor established that there has been a failure of justice. The first contention must consequently be overruled.

5. As regards the second point, it is based on the assumption that the plaintiff can have no enforceable cause of action till he obtains a settlement of the disputed land from the Revenue authorities. There is, in our opinion, no foundation for this argument. In 1899, a suit was instituted by the plaintiff against the defendants as also the Secretary of State for India in Council, for declaration of his title to the disputed property and for recovery of possession with mesne profits. At that time, the property was under settlement with the contesting defendants for a term of 10 years which had commenced in 1894, and was to terminate in 1904. Notwithstanding the fact that the of plaintiff at that time had no settlement from the Revenue authorities, he was awarded a decree by the Subordinate, Judge for declaration of title, as also for recovery of possession with mesne profits. That decree was ultimately confirmed by this Court, subject to variation in one respect not material for the purpose of the present litigation. The view then taken was unquestionably right and at any rate cannot be challenged in this suit between the same parties after the expiry of the settlement then current, there were two successive annual settlements with the defendants fallowed by, a quinquennial settlement in 1906 which was to, expire in 1911, and this was followed by a settlement for 10 years, to expire on 31st March 1921. In our opinion, the plaintiff had an enforceable cause of action, even though, at the date of the institution of the suit he had no settlement from the Revenue authorities. This view is supported by a principle; enunciated by the Judicial Committee in a well known case which was heard by them on two occasions, Maharaja Rajendur Pertab Sahee v. Lalljee Sahee(1) and Raghoobur Dayal Sahoo v. Kishen Pertap Sahee(2). On the second occasion, Sir Barnes Peacock, pointed out that the nature of the title to a property is not affected by the circumstance that it is held from the Crown under, a, periodical settlement, and that although the amount of the revenue payable to the Crown may, be periodically varied in view of the varying quantity and quality of the land, the nature of the title thereto remains unaffected. In the case before us, the property, is claimed by the plaintiff as reformation in situ of an estate, held by him under the Government. This, title was established in the litigation of 1899 in the presence not only of the, Secretary of State but also of the present contesting defendants. It is worthy of notice that in that litigation the plaintiff obtained possession and mesne profits. The decree made by the Court on the 13 December 1906 was subsequently executed and the plaintiff was placed in possession on the 15th June 1907. Thereafter the plaintiff was dispossessed on the 1st March 1913 by virtue of an order under section 145 of the Cr PC, which held in substance that the defendants and-their tenants were in, occupation of, the disputed tract. It is unquestionably open to the plaintiff to maintain, this suit and to seek recovery of possession as he did in the previous, litigation. The second contention of the defendants must consequently, be overruled.

6. As regards the third, pointy it has, been urged that the suit is barred under. Article 45 of the Schedule to the Limitation Act, inasmuch as it has not been instituted within 3 years from the date of the last, settlement, with the defendants. There, is no force in this contention as the object of the suit is not to set, aside an award made by the Revenue authorities.

7. This is suit to recover possessions and if the plaintiff succeeds, the settlements made by the Revenue authorities in so far as it determines the amount off revenue; payable in respect of the disputed, property by the holder thereof, will in no way be affected. The substance of the matter is that the plaintiff seeks to obtain the benefit of the, settlement obtained by the defendants, notwithstanding the decision in the previous litigation. The decision in Abdul Kadir v. Hamid Meah(3) has no application, as this is not a suit to set aside an order of the Revenue authorities refusing to make a settlement of, khas mehal, lands with the plaintiff. There is, therefore, no force in the contention that the suit is barred by limitation.

8. As regards the fourth point, it has been urged that in view of the nature of the property, partition thereof cannot be effected by a Civil Court; and in support of this contention reference has been made to the decision of this Court in Bepinbehary Mitter v. Lala Bhugwat Sahai(4) which is clearly distinguishable. In the present case, as already stated, the title of the plaintiff has not been made precarious by virtue of the periodical settlement, for the, assessment of revenue made by the Revenue authorities with defendant, consequently there is nothing in the nature of the property which makes it impossible for partition by the Civil Court and the case is governed by the decision of the Full Bench in Hemadri v. Ramani(5). The fourth contention accordingly fails. As regards the fifth point, the contention is that the plaintiff, should not have been allowed a decree for mesne profits, inasmuch as he has not been ousted by the defendants. The Subordinate Judge has dealt with this matter at full length. He has pointed out that the defendants are in exclusive possession of the property through their tenants and that the effect of the order under section 145 of the Cr PC has been to dispossess the plaintiff. There can be no question, that since the date of that order the defendants have been in exclusive possession. This is also in accord with the attitude taken up by the defendants throughout this litigation, for they have strenuously maintained, even up to this Court, that plaintiff is not entitled to possession till after the expiry of the current term of the settlement with them. We are of opinion that the Subordinate Judge has rightly allowed the plaintiff mesne profits.

9. As all the contentions urged by the appellants fail, appeal must be dismissed with costs including the reserved costs.

10. Appeal dismissed.