Ghamandi Misser v. Jagarnath Misser

1. In 1912, the Maharaja of Dumraon brought a Title Suit No. 102, against a large number of tenants of mauza Nagpura in respect of about 675 bighas of newly accreted land. The suit was compromised, the Maharaja admitting the tenancy right of the defendants, and the defendants agreeing to pay rent to him. In 1920 there was a dispute regarding 10 bighas out of the land dealt with in the suit of 1912, and this dispute was dealt with by the Magistrate in a proceeding under Section 145 of the Cr PC which terminated in an attachment of the land under S. 146. In 1932 the plaintiffs brought the suit out of which this appeal arises, for a declaration that out of the 10 bighas covered by those proceedings under S. 145, plaintiffs 1 and 5 were entitled to 2 bighas 12 kathas 4 dhurs, and plaintiffs 2 to 4 to 5 bighas 13 kathas. Defendant 1 contested the suit and claimed that the entire 10 bighas was his. Defendant 2 claimed a part of the 10 bighas. There were other matters raised below which. It is not necessary to state now in view of the limited character of the contentions before me.

2. The trial Court came to the conclusion that the plaintiffs had not made out the bible they had set up to the land claimed by them. Plaintiffs' case was that in 1914 there had been an amicable arrangement, or private partition, between the defendants in the Maharaja's suit, as a result; of which the plaintiffs had received and come into possession of the land now claimed by them. The learned Munsif found that this allegation was not made out. The only other evidence adduced on behalf of the plaintiffs in support of their title to the specific parcel of land now claimed, was a petition of compromise pat in before the Magistrate after his order of attachment, and this petition of compromise speaks of plaintiffs 2 to 4 keeping in future 5 bighas 13 kathas, and so on. This petition of compromise was not acted upon by the Magistrate because some of the parties to the proceedings, in particular defendants 3 to 8 who had received 8 out of the 10 disputed bighas under a mortgage from defendant 1, refused to join. The question thus arose before the learned Munsif whether this compromise could be treated as evidence even though it was not registered. The learned Munsif was of opinion that the compromise petition must be taken to be a non testamentary instrument declaring the plaintiffs' right of possession for the first time, and that as it was not registered under Section 17(1)(b) of the Registration Act, it must be excluded from the evidence, the land being worth more than Rs. 100. In this view he dismissed the suit. Plaintiffs appealed, and the Sub-ordinate Judge came to the conclusion that the compromise petition did not require registration because it merely embodied an arrangement between the plaintiffs and defendants 1 and 2, by which they made up the dispute among them regarding the disputed land, so as to release the disputed land from the attachment made by the Magistrate.

3. According to him,

4. The compromise petition did not create or extinguish the right of any party therein over the disputed land, but it merely disclosed the existing state of things with regard to the disputed land before the attachment and sale by the Magistrate, and it was admissible in evidence “as containing an admission of the parties regarding their rights to the disputed land.” He, accordingly, decreed the suit. Defendant 1 appeals, and two contentions are advanced on his behalf.

5. The first contention is that the compromise petition comes within Section 17(1)(b) of the Registration Act, and is there, fore inadmissible in evidence on the ground of want of registration; and the second contention is that the suit of the plaintiffs is barred by the limitation of six years under Article 120 of Sch. 1, Lim. Act. Before dealing with the question whether the petition of compromise after the Magistrate's order of attachment comes within Section 17(1)(b) of the Registration Act, I ought to refer to a point on which there has been a difference of opinion between the lower Courts and regarding which there has been some contention before me. As I have already said, it was the plaintiffs' case that in 1914, after the termination of the title suit of the Maharaja of Dumraon, there was a private partition or amicable arrangement among the defendants of that suit, in accordance with which the plaintiffs got the areas now claimed by them. The learned Munsif held on the evidence that this private partition was “a mere myth”. The learned Subordinate Judge, on the other hand, proceeded on the footing that it was common ground between the plaintiffs and defendant 1 that there was an amicable partition of the land contained in the large plots 1098 and 1303, out of which 10 bighas are now in suit. The learned Subordinate Judge observed that the proceeding under S. 145, in which the parties to the present suit all appear to have asserted their interest in the disputed land, “presupposes a batwara of the land among the parties, since no such proceeding would have arisen in the case of joint possession.” The Advocate-General, who appears for the appellant, contends that the lower Appellate Court was in error in taking it that an amicable partition was common ground between the parties, and points out that the amicable partition meant by the plaintiffs is a partition among the large number of defendants in the Maharaja's suit, while the partition admitted by defendant 1 is a partition between him and his cosharers. If an amicable partition of one and the same subject-matter had been common ground, it is difficult to imagine the plaintiffs adducing evidence on the point—evidence which has been referred to by the learned Munsif. It is not for this Court to weigh the evidence bearing on a question of fact, but by way of reinforcing the finding of the learned Munsif, the Advocate-General has referred to the statement of P.W 1 (a son of plaintiff No. 2) in his cross-examination (against the allegation in his examination in chief of a private partition in 1914) to the effect that there was no batwara after the compromise with the Maharaja. The observation of the Subordinate Judge that the proceeding under S. 145 presupposes a batwara of the land among the parties to the proceeding, is on the face of it erroneous, since. It is obvious that even without) a batwara, some of the defendants in the Maharaja's suit may have taken possession of such land as they could, and that this may have led to the proceedings under S. 145; bub, in my opinion, nothing of great importance turns upon the state of things prior to the proceeding under S. 145, and that for this reason, Mr. Mitra, who appears for the plaintiffs, has had to argue that the plaintiffs from among the defendants in the Maharaja's suit must have come into possession in accordance with their title after the termination of the suit of the Maharaja, that it is to this point we must look for the title of the plaintiffs, and that the petition of compromise, which came after the attachment of the disputed land under Section 146 of the Cr PC merely recognized the existing state of things. It does not however appear why such possession as there was before the proceedings under S. 145 must be taken to be in accordance with the titles of the parties, even though it did admittedly lead to a dispute which had to be dealt with under S. 145. The learned Subordinate Judge has overlooked the evidence of the mortgage of defendant 1 in favour of defendants 3 to 8, when he observes that the petition of compromise merely disclosed the existing state of things with regard to the disputed land before the attachment by the Magistrate. The petition of compromise does not purport to have done so, and read as a whole leaves no doubt that—to put ??? the very lowest—ib limited and defined the interests of the various tenants concerned who ab one time had been holding the land either as tenants-in common or as joint benanbs. Thus, as regards plaintiffs 2 and 3, and (the father of) plaintiff 4 it says that 5 bighas 13 kabhas will remain in their possession, while as regards other parties to the proceeding under S. 145. It gives certain details and summarizes them by saying that as to the portion of the attached land which has been given to parties 2, 3, 4, 5 and 7—“jo fareek 2, 3, 4, 5, 7 ke mila hai”—it will remain in the possession of those people who have other land on the west. What could a petition of this kind mean but that each party's interest was to be limited in future to the specific parcel of land allotted to him under the document, that this interest was exclusive of the other parties, and that no party was to have any interest in the lands allotted to other parties, as distinguished from the previous state of things when the disputed land was held by all the parties either as tenants-in-common or as joint tenants? Nor has the learned Subordinate Judge professed to Act on any evidence in observing that the petition of compromise merely disclosed the existing state of bhings with regard to the disputed land before the attachment, etc. The petition of compromise must, in my opinion, be clearly dealt with as a document amounting not merely to a mere recital of fact but to something which in itself creates title, the important distinction pointed out by Viscount Dunedin in 11 Pat 272.1 As a document of title. It clearly required registration and was therefore rightly excluded from consideration by the trial Court. It is not pretended on behalf of the respondents that there was any other evidence on which the lower Appellate Court could have or has relied in finding the plaintiffs' title, for I have already dealt with the observations of the lower Appellate Court regarding the amicable partition on which Mr. Mitra laid some stress, and from which he argued, as I have already stated, that the plaintiffs must have been in possession of some land before the proceeding under S. 145 by virtue of their title. That bible is an entirely different matter from the title, if any, based on the compromise petition, for it was clearly the tide of a tenant in common or a joint tenant. The finding of the lower Appellate Court as regards the plaintiffs' title is thus clearly untenable in law and must be replaced by the finding of the trial Court to the contrary on that point.

6. As regards limitation, the Advocate. General contended on the authority in 26 Mad 4102 that the present suit was barred by limitation, because it was brought more than six years after the attachment order under Section 146 of the Cr PC. The authority referred to by the Advocate. General was discussed in 20 CWN 481,3 where it was held that these are cases of a continuing wrong so that no question of limitation could arise. The Advocate. General referred to the observation in Brojendra Kishore's case that the answer to the question when does the right to sue accrue must depend on the circumstances of the particular case, but that observation has no reference to the consideration on which the Advocate-General sought to place some reliance, viz whether or not there was a dispossession of the plaintiffs prior to the proceeding under S. 145. The Advocate-General referred to this consideration because of the ruling in 49 Cal 544,4 but it seems to me that even this decision is against the contention that suits brought for the recovery of property after attachment under S. 146 are case of a continuing wrong. It is however not necessary to deal with the point in detail, because I am quite clearly bound by the decision of this Court in 12 Pat 261,5 in which the contention that the plaintiff had been dispossessed prior to the proceeding under S. 145 was expressly negatived by the learned Judges, who nevertheless held, following Brojendra Kishore Roy's case, that such cases are cases of a continuing wrong within Section 23 of the Lim. Act. The appellant's contention that the suit is barred by limitation must therefore be overruled. The appeal however succeeds on the question of title. The decree of the lower Appellate Court is reversed and that of the trial Court restored with costs throughout against plaintiffs. Leave to appeal is refused.

D.S/R.K

7. Appeal allowed.