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Shiv Saran Rai v. Sukhdeo Rai
Factual and Procedural Background
This dispute concerns properties that belonged to one Nathuni Rai, a descendant of the eldest branch of the family of Bhup Rai (spelled "Bhnp Rai" in parts of the opinion). Nathuni Rai held property in two villages, Madhubani and Jagarnath Sarai; in Jagarnath Sarai his holdings were identified as khata No. 178 and khata No. 185. The landlords (proprietors) of khata No. 178 were impleaded as third party defendants; khata No. 185 was alleged in the plaint to be in the milkiat of one Paras Nath.
After Nathuni Rai's death, various branches of the family disputed succession. In 1922 a suit was instituted by members of the third, fifth and second branches against the father and uncles of the present plaintiff (fourth branch), claiming an equal partition of Nathuni's property. That 1922 suit was decided in favour of the plaintiff's father and uncles, who were held to be the nearest surviving heirs of Nathuni. Despite that decision, disputes continued and Section 144 CrPC proceedings in March 1926 produced an order restraining the contesting defendants from interfering with the present plaintiff's possession of the two holdings in Jagarnath Sarai. Later in 1926 the plaintiff sought proceedings under Section 107, which were refused.
On 27 August 1927 the plaintiff filed the present suit alleging dispossession on 24 December 1926 (5th Pus, 1334 Fasli) and naming multiple defendants from the family branches and the landlords as third parties. Various defendants took different procedural steps: defendant 5 admitted the claim; defendants 6–9 did not appear; third party landlords denied dispute and said they had merely recorded names and given receipts; defendants 1–4 contested the claim denying succession by Nathuni or challenging his capacity. The trial Court decreed the suit for the plaintiff. An appeal by the contesting defendants failed. Defendant 7, who had been decreed against ex parte, successfully applied for a re-hearing; his case was re-tried. The appellate Court thereafter held in favour of defendant 7 on genealogy, succession (that Sheotahal survived Nathuni and gifted the property to defendant 7) and limitation grounds. The present Court (Agarwala, J., with Madan, J. agreeing) heard the second appeal, considered the scope and application of Article 3, Schedule 3, Bengal Tenancy Act (Ben. Ten. Act) as to limitation, and remanded the case for further disposal according to law.
Legal Issues Presented
- Whether Article 3, Schedule 3, Bengal Tenancy Act applies to bar the plaintiff's suit (i.e., whether the special two-year limitation period under that Article governs the claim).
- Whether Sheotahal survived Nathuni Rai and, if so, whether there was an effective (oral) gift of the disputed properties to defendant 7.
- Genealogical questions material to succession: specifically whether Dihal and Sarab were sons of Bhup Rai; whether the plaintiff's father and uncles pre-deceased Nathuni Rai; and whether Sheotahal's father had been adopted by Ramji Rai.
- Whether the plaintiff was dispossessed by the landlords (or by persons for whom the landlords were responsible), which would affect the applicability of the special limitation Article.
- Whether res judicata/precedent arising from the 1922 suit (which decided title in favour of the plaintiff's father and uncles) precludes defendant 7 from deriving title through his father's claim.
Arguments of the Parties
Plaintiff's Case
- The plaintiff alleged dispossession on 5th Pus, 1334 Fasli (24 December 1926) and claimed the disputed holdings as successor to Nathuni Rai.
- Submitted a genealogy annexed to the plaint showing the sons of Bhup Rai and identifying the plaintiff's line (Mana → Sampat → plaintiff's grandfather).
- Relied on earlier decisions and evidence showing that the plaintiff's father and uncles were the nearest male agnates at the time of Nathuni's death and that the plaintiff had been in possession until 1334 Fasli.
Defendants 1–4 (Contestants at trial)
- Contended that Nathuni Rai was a congenital idiot and therefore had not succeeded to any property; alleged that on the death of Nathuni's father Pirthi Pal the property had been divided by family arrangement among the second, third, fourth and fifth branches.
- This line of defence repeated contentions made in the earlier 1922 suit and was negatived in that suit and again in the trial Court.
Defendant 7
- Alleged that on Nathuni's death the properties were inherited by one Sheotahal of the second branch (claimed to be the nearest agnate) and that Sheotahal subsequently made an oral gift of the properties to defendant 7.
- Asserted that the plaintiff's father had pre-deceased Nathuni and that defendant 7 had been in adverse possession for more than 12 years; also pleaded that the plaintiff's suit was barred by limitation.
- Denied certain elements of the plaint's genealogy (e.g., that Dihal and Sarab were sons of Bhup Rai) and raised alternative genealogical narratives that would make Sheotahal the nearest male agnate.
Third-Party (Landlords of khata No. 178)
- Objected to unnecessary impleading and denied any dispute with the plaintiff.
- Stated they had merely granted receipts to persons whose names had been entered in their sherista after deaths in the family, disavowing responsibility for dispossession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 54 Cal 4501 | Held that Article 3, Sch. 3, Ben. Ten. Act is not confined to cases of dispossession by the landlord as such. | Cited as one of the authorities showing that Article 3 may apply beyond direct landlord dispossession; noted among conflicting decisions but not adopted as determinative. |
| 9 Pat 788 | Held that dispossession by the landlord as auction-purchaser of the holding does not attract Article 3. | Cited to illustrate a contrary line of authority on the scope of Article 3; the Court recorded the conflict of decisions. |
| 9 CWN 543 | Held that Article 3 does not apply where the dispossession was not effected by the landlord even though the landlord is alleged to have set up the person who actually dispossessed the tenant. | Cited as part of the line of cases limiting Article 3; used when assessing whether landlords in this case were responsible for dispossession. |
| 10 Pat 2644 | Held that where the landlord has settled the land with a person who has already dispossessed the tenant, Article 3 does not apply; but dispossession by a person armed with a settlement from the landlord does attract Article 3. | Cited to show nuanced distinctions about landlord involvement; the Court noted these distinctions when evaluating the factual allegations of conspiracy and landlord responsibility. |
| 158 IC 21 : AIR 1935 Pat 372 | Applied the proposition that dispossession by a person armed with landlord's settlement attracts Article 3. | Cited as an authority recognizing that dispossession by a person acting under landlord's authority can bring Article 3 into play; used to frame the spectrum of authorities reviewed. |
| 24 Cal 406 | Held that Article 3 applies where the tenant is actually dispossessed by the landlord or by his servants. | Cited to show instances where Article 3 clearly applies; the Court contrasted that position with the facts of the present case. |
| 9 CWN 54 | Held that Article 3 applies where dispossession is by a person set up by the landlord. | Cited among cases showing Article 3's applicability when the landlord instigates or sets up the dispossessor. |
| 57 CLJ 549 | Held that where the landlord had no hand in the dispossession, Article 3 does not apply. | Cited as authority supporting the proposition that absent landlord involvement Article 3 will not apply. |
| 64 IC 858 | Similar proposition: Article 3 does not apply where the landlord had no hand in the dispossession. | Cited to reinforce the line of decisions excluding Article 3 where landlords were not involved. |
| 59 IA 247 | Principle applied to preclude a party from relying on title that has been decided adversely in an earlier suit (res judicata / effect of earlier decision). | The Court applied this principle to hold that defendant 7 could not succeed by relying on his father's title when that title had been decided in favour of the plaintiff's side in the 1922 suit. |
| 11 PLT 34 | Authority for the proposition that a plaintiff who was dispossessed within the relevant period of limitation is entitled to recover possession unless the defendants establish a better title. | Cited by the Court to state the legal consequence that even if the plaintiff was out of possession at suit-date, he could recover possession if dispossession occurred within the period and defendants fail to prove superior title. |
Court's Reasoning and Analysis
The Court's analysis proceeded in these principal steps (as stated in the opinion):
- Examination of factual allegations regarding dispossession and landlord involvement: The Court emphasized that the plaintiff's substantial grievance was that he had been dispossessed by persons who claimed the properties of Nathuni Rai, not that the landlords had instigated or assisted the dispossession. The landlords (third parties) disclaimed any dispute and said they only recorded names and gave receipts.
- Analysis of the scope of Article 3, Schedule 3, Bengal Tenancy Act: The Court reviewed a series of conflicting authorities about when Article 3 applies — noting authorities that extend Article 3 beyond direct landlord dispossession and others that confine it. The Court observed a conflict of decisions on whether Article 3 applies where dispossession is effected by someone other than the landlord but alleged to be set up by the landlord.
- Application of the law to the present facts on limitation: Because the plaintiff did not prove landlord involvement in the dispossession and did not lead evidence tying the landlords to the dispossession beyond general allegations (and because the landlords denied responsibility), the Court concluded that the special two-year limitation under Article 3 did not apply. The Court further criticized the lower appellate Court for relying almost entirely on an allegation in the plaint about dispossession date and for dissecting that allegation inappropriately; it noted that the appellate Court omitted to consider the evidence relied upon by the trial Court concerning possession.
- Evaluation of other factual issues and appellate treatment: The Court found the lower appellate Court's treatment of the other factual issues (genealogy, survival of Sheotahal, reliability of witnesses, alleged oral gift) to be inadequate, noting that documentary and circumstantial evidence had been neglected and not discussed in relation to the oral evidence. The present Court refrained from expressing any opinion on those factual materials but concluded that the appellate decree was unsatisfactory.
- Application of res judicata-type principle: The Court held that defendant 7 could not rely on the title of his father to claim half the property where that title issue had been decided in favour of the plaintiff's side in the 1922 suit; the Court invoked the principle in 59 IA 247 to preclude the respondent's contention.
- Legal consequence on possession: The Court restated the proposition from 11 PLT 34 that a plaintiff dispossessed within the period of limitation is entitled to recover possession unless defendants establish a superior title — a principle relevant to the parties' competing claims on possession.
Holding and Implications
Core Ruling: The decree of the lower appellate Court is set aside and the case is remanded for further disposal according to law.
Implications:
- The Court determined that Article 3, Schedule 3, Bengal Tenancy Act (the special two-year limitation) does not apply to the present case on the facts as pleaded and proved, because the plaintiff's case presented dispossession by persons claiming the land rather than by the landlords or persons shown to act on landlords' authority.
- The appellate Court's factual determination on possession and related issues was found inadequate; those issues require fuller consideration with documentary and circumstantial evidence properly weighed against oral testimony on remand.
- The Court applied the principle reflected in 59 IA 247 to preclude defendant 7 from relying on his father's title where that point had been resolved in the earlier 1922 suit.
- No broader new precedent was laid down; rather the Court reviewed conflicting authorities about the scope of Article 3 and, on the basis of the record and factual findings, concluded that Article 3 was not applicable here and ordered remand for a fresh determination of facts and law in accordance with these observations.
Disposition: Case remanded. (Agarwala, J.; Madan, J. agreed.)
Agarwala, J.:— The dispute in this appeal relates to the properties of one Nathuni Rai, a descendant of the eldest branch of the family of Bhnp Rai. The plaintiff and defendants, except defendants third party, are descendants of other branches of the family of Bhnp Rai. Nathuni Rai had property in two villages, Madhubani and Jagarnath Sarai. In the latter village his property consisted of two holdings, khata No. 178 and khata No. 185. Defendants third party were the landlords of the former holding. In the plaint in the present suit it is alleged that one Paras Nath was the landlord of khata No. 185. After the death of Nathuni Rai, the present defendants 1 and 6, belonging, respectively to the third and fifth branches of Bhup Rai's family, and Aman Rai, father of defendant 7 of the second branch of the same family, instituted a suit in 1922 against the father and uncles of the present plaintiff, who belonged to the fourth branch of Bhup Rai's family, alleging that the second, third, fourth and fifth branches of the family had each inherited one-fourth of Nathuni Rai's property. That suit was decided in favour of the father and uncles of the present plaintiff, it being held that they were the nearest surviving heirs of Nathuni at the time of his death. Despite this decision the dispute between the parties continued with the result that proceedings under Section 144 of the Cr PC, were initiated and resulted in an order against the contesting defendants in this suit prohibiting them from interfering with the present plaintiff's possession of the two holdings in Jagarnath Sarai. This was in March 1926. At the end of the same year the present plaintiff again complained that his possession was being interfered with and he asked for proceedings under S. 107 to be taken against the persons complained against. His request was refused.
2. Consequently, on 27th August 1927, he filed the plaint in the present suit alleging that as a result of the refusal to initiate proceedings under S. 107 he had been dispossessed on 5th Pus, 1334 Fasli, corresponding to 24th December 1926; Defendants 1 to 4 in the suit were the descendants of the third branch of Bhup Rai's family; defendant 5 was a descendant of the fourth branch; defendant 6, a descendant of the fifth branch, and defendants 7 to 9 of the second branch. The landlords of khata No. 178 were also impleaded as defendants third party. Defendant 5 filed a written statement admitting the plaintiff's claim. Defendants 6 to 9 did not enter appearance. The third party defendants, the landlords, filed a written statement objecting that they had been unnecessarily impleaded in this suit and denying that they had any dispute with the plaintiff. The plaintiff's claim was contested by defendants 1 to 4 alone. They alleged that Nathuni Rai was a congenital idiot and, therefore, that he had not succeeded to any property, but that on the death of his father Pirthi Pal the latter's property had been divided by family arrangement between the second, third, fourth and fifth of Bhup Rai's family. This was a repetition of the claim in the former suit, and it was again negatived. The suit was decreed and an appeal by the contesting defendants failed. Thereafter defendant 7, against whom the suit had been decreed ex parte, applied for a re-hearing. His application succeeded, with the result that the suit has been re-tried as between plaintiff and defendant 7.
3. In his written statement defendant 7 did not take the same line of defence as had been taken by the other contesting defendants. He alleged, on the other hand, that on the death of Nathuni Rai the latter's properties were inherited by one Sheotahal of the second branch of Bhnp Rai's family who was alleged to be the nearest agnate of Nathuni at the time of the latter's death. He also alleged that plaintiff's father had pre-deceased Nathuni and that Sheotahal, after sue seeding to Nathuni's properties, had made an oral gift of them to himself. Defendant 7 claimed to have been in adverse possession of the disputed properties for more than 12 years and also pleaded that the plaintiff's suit was barred by limitation. The plaintiff filed a genealogy of the family with his plaint in which the sons of Bhup Rai were shown as follows: Dihal, the ancestor of Nathuni Rai, Sarab, the ancestor of Sheotahal and defendants 7 to 9, Udwant, the ancestor of defendants 1 to 4, Mana, the ancestor of defendant 5 and the plaintiff, Sadan Rai, the ancestor of defendant 6, and Ramji Rai who was stated to be the adoptive father of Mahipat Rai, the father of Sheotahal. Defendant 7 denied that Dihal and Sarab were sons of Bhup Rai or that Ramji Rai had adopted Mahipat. He alleged that Dihal and Sarab were the sons of Prayag Rai, who was said to be a son of Bhup Rai, and that the plaintiff's father and uncles had pre-deceased Nathuni Rai. If these allegations of the defendants were correct then Sheotahal was the nearest male agnate of Nathuni on the latter's death. Accordingly, the questions whether Dihal and Sarab were the sons of Bhup Rai, whether Sheotahal survived Nathuni, whether the plaintiff's father and uncles pre-deceased Nathuni and whether Sheotahal's father was adopted by Ramji Rai were material issues in the case. A further material question was whether the sons of Mana were Ranjit, Mitrajit and Sampat, the grandfather of the plaintiff, as alleged by the latter, or whether third son of Mana was Indrajit as alleged by defendant 7, according to whom Sampat was the son of Indrajit.
4. In view of the decision of the first suit, that is to say the suit of 1922, to which the father of defendant 7 was a party, and in which it had been held that the plaintiff's father and uncles were the nearest male agnates of Nathuni Rai at the time of his death, defendant 7 would prima facie have no title to the properties of Nathuni Rai unless the latter predeceased Sheotahal leaving him as the nearest agnate and Sheotahal made a gift of the properties to him. The first Court, after an elaborate survey of the evidence, held that the defendants' evidence was entirely false, that Sheotahal pre-deceased Nathuni, that the statement of Sheotahal's widow that Sheotahal had succeeded to the properties and gifted them to Nathuni Rai was unreliable, that plaintiff's father and uncles were the nearest male agnates of Nathuni at the time of the latter's death and that plaintiff was in possession of the disputed lands until 1334 Fasli. The suit was accordingly decreed. In appeal by defendant 7 it was held that the genealogy annexed to the plaint was correct, that Sheotahal survived Nathuni and gifted the disputed property to defendant 7, that plaintiff's father and uncles did not survive Nathuni and that in any case the plaintiff's suit was barred by limitation. The last question, which is the only issue adequately discussed in the judgment of the appellate Court, was contested on the basis of the suit being governed by Article 3, Sch. 3, Ben. Ten. Act. The appellate Court held that plaintiff had failed to prove that he had been in possession of the disputed land within two years of the suit. In second appeal by the plaintiff it is contended that Article 3, Sch. 3, Ben. Ten. Act, does not apply to the case and that the suit is governed by the 12 years' period of limitation prescribed by the general law. We have been referred to a large number of cases of this Court and of the Calcutta High Court as to the scope of Article 3, Sch. 3, Ben. Ten. Act. There is a conflict of decisions as to whether the Article applies when the plaintiff has been dispossessed by the landlord, not qua landlord but in some other capacity. In 54 Cal 4501 it was held that the Article is not confined to cases of dispossession by the landlord as such. In 9 Pat 788,2 on the other hand, it was held that dispossession by the landlord as auction-purchaser of the holding does not attract the provisions of the Article. In 9 CWN 543 it was held that the Article does not apply where the dispossession was not effected by the landlord even though it is alleged that the landlord has set up the person who actually dispossessed the tenant. The decision in 10 Pat 2644 was that where the landlord has settled the land with a person who has already dispossessed the tenant, Article 3 does not apply, but on the other hand, dispossession of a tenant by a person armed with a settlement from the landlord does attract the operation of the Article: 158 IC 21 : AIR 1935 Pat 372.5 The Article does apply of course where the tenant is actually dispossessed by the landlord or by his servants 24 Cal 406 or by a person set up by the landlord: 9 CWN 54. But where the landlord bad no hand in the dispossession it has been held that the Article does not apply: 57 CLJ 549,7 64 IC 858.8 In the present case it is contended by defendant 7 that the plaintiff alleged that the defendants including defendants third party, the landlords of khata No. 178, had conspired to dispossess him and it was therefore argued that Article 3 applied. In the first place, it is to be noticed that this contention can not apply to khata No. 185 which, in para. 4 of the plaint, is said to be in the milkiat of Parasnath, although para. 6 is as follows:
With regard to the properties hearing khatas Nos. 178 and 185 in mauza Sarai Jagarnath of which the defendants third party are the proprietors.
5. The lower appellate Court has come to no finding whether khata No. 185 is in the milkiat of Parasnath or in the milkiat of defendants third party. Further despite the general allegations of conspiracy the plaintiff's substantial grievance was that he had been dispossessed by persons who claimed the properties of Nathuni Rai. He led no evidence to prove that the landlords were in any way responsible for the dispossession. The allegation of a conspiracy was apparently based on the fact that the landlords had granted receipts to the other defendants. But the landlords themselves in their written statement disclaimed any dispute with the plaintiff and said they had merely granted receipts to the persons who had their names recorded in their sherista after the death of Prithi Lal and his son Nathuni Rai. The lower appellate Court's finding that the defendants dispossessed the] plaintiff more than two years prior to the suit and that the suit was therefore barred by Article 3 is based almost entirely on an allegation in the plaint that the defendants dispossessed him on 5th Pus 1334, which was within two years of the suit. If this allegation is to be construed as an admission that the landlords were responsible for the dispossession it cannot be divided into parts and must be read only as an admission that the dispossession was on 5th Pus 1334. It was not open to the Court of fact to dissect the admission and treat it as an admission that the plaintiff had been dispossessed by the landlords at some prior time. The appellate Court has omitted to consider the evidence referred to by the trial Court in coming to its conclusion on the question of the plaintiff's possession.
6. In my opinion the plaintiff's case substantially was that he had been dispossessed by the persona claiming the land and not that the landlords had instigated or assisted in the dispossession of the plaintiff. It follows therefore that the special period of limitation prescribed by Article 3, Sch. 3, Ben. Ten. Act, does not apply to the case. On all the other issues of fact the judgment of the lower appellate Court is entirely inadequate. The documentary and circumstantial evidence in the case with regard to these issues have been completely neglected and their bearing on the oral evidence not discussed. I refrain however from expressing any opinion on this evidence. The decree of the lower appellate Court must therefore be set aside and the case remanded to be disposed of according to law.
7. It was contended on behalf of the respondent that even if the alleged oral gift of Sheotahal to defendant 7 be not established the latter was entitled to succeed as to half of the disputed property in the event of it being held that Sheotahal survived Nathuni. To succeed in this contention however the respondent must rely on the title of his father and this was decided in favour of the plaintiff in the suit of 1922. The principle of the decision in 59 IA 247,9 applies and precludes the respondent's contention.
8. Lastly, it was argued that the plaintiff being admittedly out of possession at the date of suit is not entitled to succeed unless he establishes his title and that if Sheotahal survived Nathuni, his widow and not the plaintiff is entitled to the property. Answer to that is that if the defendants dispossessed the plaintiff with, in the period of limitation prescribed for a suit for possession the latter is entitled to recover possession unless the defendants establish a better title: 11 PLT 34.10
Madan, J.:— I agree.
K.B/A.L
9. Case remanded.
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