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Saila Bala Devi v. Sworna Moyee Devi
Structured Summary of the Provided Opinion
Factual and Procedural Background
The opinion concerns four appeals arising out of two suits over lands originally called Mouza Goalanda (later referred to as Char-Bara Goalanda in settlement records). The first suit was instituted by Sailabala Debi and others following proceedings under Section 145 of the Criminal Procedure Code; the Munsif of Pabna partly decreed the suit for the plaintiffs and dismissed part of it. Both parties appealed to the District Judge, who affirmed the trial court's decree. The second case originated from a reference by the Collector under Section 5 of the Alluvion Lands Act of Bengal; it involved the same opposing parties and additional cultivating tenants (found by the courts below to be occupancy raiyats). The Subordinate Judge decided partly for both parties; the District Judge affirmed that decree on appeal. Each party then made two appeals to this Court. Because the issues in both suits were practically the same, the Court dealt with them together.
Key factual background (as found in the opinion):
- In 1885 Bisweswar Basu Majumdar acquired three annas of Touzi No. 287 (a portion of Mouza Goalanda).
- Between 1890–1892 Mouza Goalanda was diluviated (washed away) by river action; it was reformed in 1892.
- In 1895 Touzi No. 287 was partitioned among five cosharer landlords; Bisweswar's portion became Touzi No. 11329.
- On 23 February 1897 Bisweswar executed two mortgages, each covering an 8-annas share (as described in the opinion) of Mouza Goalanda and other mouzas.
- Mouza Goalanda was again diluviated in 1898 and reformed in 1901, when Bisweswar took possession of the reformed mouza and allegedly held adversely against his cosharers.
- Mortgagees obtained decrees and subsequently purchased 8-annas shares in execution (one set purchased in 1912 with possession taken in March 1913; the other purchased in 1917 with possession given in January 1919).
- The mouza was diluviated again in 1920 and reformed in 1922; disputes regarding possession began in May 1929, leading to the present proceedings.
- The courts below found the cultivating tenants to be occupancy raiyats and unaffected by whichever landlord succeeded.
Legal Issues Presented
- Whether the mortgagees obtained, by virtue of the mortgages and subsequent sales in execution, the entire Mouza Goalanda (or only Bisweswar's original share as described by Touzi No. 11329).
- Whether the auction purchases in execution were invalid or ineffective because certain persons (two ladies who had purportedly purchased the touzi for arrears of cess in 1901–02) were not made parties to the execution proceedings.
- Whether the appellants (Sailabala Debi and others) are entitled to have their rights limited to the area of the old Mouza Goalanda as shown in earlier revenue survey maps, or whether they are entitled to the larger area shown in the Cadastral Survey (final settlement published in 1913) known as Bara Char Goalanda (i.e., whether accretions/reformations belong to the mortgaged property).
Arguments of the Parties
Swarnamoyee Debya and others (arguments detailed in the opinion)
- They contended that the mortgage deeds, on their proper construction, showed that only Bisweswar's share in Touzi No. 11329 (the three annas portion) was mortgaged, not the whole of Mouza Goalanda.
- They argued that the mortgagees' auction purchases obtained nothing as against certain ladies who in 1901–1902 had purchased the touzi for arrears of cess because those ladies were not made parties to the execution proceedings.
Mortgagees / Position as found by the Courts
- As found by the Courts below, the mortgage deeds described that the 8-annas share of Mouza Goalanda was mortgaged to each of the mortgagees, and Bisweswar represented that he possessed the whole of Mouza Goalanda under his title to Touzi No. 11329.
- The courts treated Bisweswar as having taken advantage of repeated diluvion and alluvion to dispossess his cosharers and to adversely possess the entire reformed mouza prior to the mortgagees' purchases in execution.
Sailabala Debi and others (arguments detailed in the opinion)
- Their primary contention was that they should receive land according to the area shown in the recent Cadastral Survey map, finally published in 1913 (Bara Char Goalanda), because the reformed char was much larger than the ancient Mouza Goalanda.
- They challenged the courts' focus on only the old mouza area and argued that the enlarged area as recorded in the 1913 settlement should be recognized in their favor.
Table of Precedents Cited
This opinion cites statutory provisions but does not cite any judicial precedents (case law).
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court proceeded through a sequence of factual findings and legal application:
- Adverse Possession and Scope of the Mortgaged Interest:
The Courts below had found that although Bisweswar's title formally extended only to a portion (three annas) as Touzi No. 11329, he had in fact adversely possessed the whole of the reformed Mouza Goalanda by dispossessing his cosharers after successive diluvions and reformations. The District Judge found that this adverse possession, though not complete for 12 years at the date of the mortgage, became perfected before the mortgagees obtained possession in execution of their decrees. The present Court agreed with this factual and legal assessment and therefore held that the mortgagees obtained the entire Mouza Goalanda by their mortgage sale.
In addressing the apparent inconsistency in the mortgage deeds (one description limiting the mortgaged interest to Touzi No. 11329 and another describing the mortgaged interest as the whole of Mouza Goalanda), the Court preferred the clear description that the whole of Mouza Goalanda was mortgaged and relied on the established fact of Bisweswar's adverse possession to treat his title as covering the whole before sale in execution.
- Validity of Execution Purchases vis-à-vis the Two Ladies:
The Court examined the contention that two ladies who had purchased the touzi for cess arrears in 1901–02 were not made parties in the execution and thus the mortgagees' purchases effected nothing against them. The Courts below had found that those ladies were made parties to the mortgage suits but did not appear to defend; although they were not made parties in the execution proceedings, their failure to appear in the suits and the subsequent decrees and executions meant the executions were effective. The present Court agreed with the decisions below and dismissed that contention.
- Characterization of Bara Char Goalanda and the Proper Test for Accretion:
The trial and appellate courts had relied on area as the "real test" to distinguish old Mouza Goalanda from Bara Char Goalanda, observing that the latter was a much vaster area and that the nomenclature "Bara Goalanda" was introduced by settlement authorities. The present Court disagreed with relying on area as the decisive test.
The Court invoked the principle in Section 70, Illustration (a) of the Transfer of Property Act (as applied in the opinion) to explain that accretions to mortgaged property pass to the mortgagee for purpose of security. The Court reasoned that where a mortgagor possesses land bordering a river and the land is increased by alluvion, the increase is part of the security. Consequently, the question was whether Bara Char Goalanda was a reformation of Mouza Goalanda with accretions, rather than asking whether areas matched exactly.
The settlement record (final published map of 1913) did not show Bara Char Goalanda to comprise any other old mouza besides Mouza Goalanda; thus the enlarged lands were treated as accretions/reformations of Mouza Goalanda. Because Bisweswar had taken possession of the whole of Bara Char Goalanda and was recorded in settlement as such, the Court treated the enlarged area as part of the mortgaged security and as passing to the mortgagees. The Court distinguished situations where a mortgagor acquires an adjacent distinct property by purchase or adverse possession (which would not enlarge security) from the present case of alluvial enlargement where there was no clear demarcation of a separate mouza.
- Net Disposition of Conflicting Findings:
The Court reconciled findings about title, adverse possession, and settlement records to reach a twofold result: (a) the mortgagees had acquired the entire mouza (as adversely possessed by Bisweswar) by their mortgage sales; and (b) the appellants Sailabala Debi and others were entitled to have their decree modified so as to include the lands of Bara Char Goalanda as shown in the final settlement record of 1913 (i.e., the enlarged reformed area), with the decree below to be modified accordingly.
Holding and Implications
Holding:
- The appeals of Swarnamoyee Debya and others were dismissed (the Court agreed with the Courts below that the mortgagees obtained the entire Mouza Goalanda and that the omission of certain ladies from execution did not invalidate the auction purchases); those appeals were dismissed without costs.
- The appeals of Sailabala Debi and others succeeded to the extent that the decree below was to be modified to grant them rights to the lands of Bara Char Goalanda as found in the finally published settlement record of 1913. With that modification, the decree of the Court of Appeal below would stand.
Implications / Consequences:
- The direct effect is that the mortgagees are treated as having obtained the entire Mouza Goalanda through mortgage and execution sale, based on Bisweswar's adverse possession, and the rights of certain cosharers which had been lost by adverse possession do not defeat the mortgagees' title.
- Sailabala Debi and others obtain a modified decree recognizing rights to Bara Char Goalanda according to the 1913 settlement map (i.e., the enlarged reformed area is treated as accretion/reformation of the original mouza and included in the subject-matter of the dispute for purposes of decree).
- Costs: The appellants (Sailabala Debi and others) will get one set of costs from the respondents in the two appeals; costs of the Courts below will follow the event. The dismissed appeals of Swarnamoyee Debya and others were dismissed without costs.
- The opinion applies statutory principle (Section 70, Illustration (a) of the Transfer of Property Act) concerning accretions to mortgaged property; it does not announce a new judicial precedent beyond applying these principles to the specific facts. The opinion did not cite any judicial precedents.
Decree modified as stated in paragraph 10 of the judgment (final line of the provided opinion).
JUDGMENT
1. These four appeals arise out of two suits. One was a suit instituted by Sailabala Debi and others after a proceeding under Section 145 of the Cr PC, in respect of the lands. The Magistrate found that the possession of the char lands was with the first party, namely Swarnamoyi Debya and others. Thereafter in April 1932 the suit was instituted in the Court of the Munsif of Pabna. The Munsif by his judgment decreed the suit partly in favour of the plaintiffs and dismissed the suit in part. Against that decree both parties appealed to the District Judge and the learned District Judge has affirmed the decree of the trial Court. The second case arose out of a reference by the Collector under Section 5 of the Alluvion Lands Act of Bengal. The opposing parties to this Court were the opposing parties in that proceeding also. Besides, there were a large number of cultivating tenants who were made parties. It may be stated at once that the Courts below have found that the tenants are occupancy raiyats and they are not to be disturbed whichever of the present parties succeed as to the superior rights. The learned Subordinate Judge who tried the suit decided partly in favour of both the parties. Against that decree both parties appealed to the District Judge and he by his judgment affirmed the decree of the trial Court. Against the two decrees of the learned District Judge each party has made two appeals to this Court. As the issues agitated by the parties in both suits are practically the same we shall deal with the matters in one judgment.
2. As stated above the tenants have been found to be occupancy raiyats and neither party in this Court questions that finding. The controversy in this Court is between the two sets of landlords and the main question for decision is whether the Courts below rightly decided the respective rights of the parties now in this Court. The lands in suit were originally called mouza Goalanda, but afterwards during the Cadastral Survey and Settlement called Char-Bara Goalanda. In understanding the controversy between the parties it is necessary to state certain facts on which there is no dispute.
3. In 1885 Bisweswar Basu Majumdar acquired three annas of Touzi No. 287 to which the portion of Mouza Goalanda appertained. Between 1890-1892 the said Mouza Goalanda was diluviated by the river. It is well known that Goalanda is situated at a place where the mighty rivers Ganges and Brahmaputra form a junction. In 1892 the mouza was reformed. In 1895 Touzi No. 287 was partitioned between 5 sets of cosharers landlords. Five separate touzis were made thereof, and the touzi which Bisweswar Basu Majumdar got was numbered 11329. On 23rd February 1897 Bisweswar executed two mortgages each for 8 annas share of Mouza Goalanda as well as other mouzas. In 1898 Mouza Goalanda was again diluviated by the river. In 1901 the mouza reformed and Bisweswar took possession of the whole of the reformed mouza holding adversely to his four cosharers. One set of mortgagees instituted their suit in 1903 and obtained a decree and in 1912 they purchased 8 annas share of the mortgaged property in execution of the decree and took formal possession in March 1913. The other set of mortgagees also duly obtained a decree and in 1917 purchased 8 annas share of the mortgaged property in execution of the decree and in January 1919 obtained delivery of possession. In 1920 the mouza was again diluviated. It was reformed in 1922. The dispute as to possession began in May 1929 after which in due course the present proceedings were instituted.
4. The first question between the parties is how much of Mouza Goalanda the mortgagees obtained by their mortgages and subsequent decrees and sale. On the side of the mortgagors and their successors it was urged that on a perusal of the mortgage deeds it will appear that it was only the share of Bisweswar Basu Majumdar in Touzi No. 11329 which was mortgaged and not the whole of the Mouza Goalanda. As to this both the Courts below have found that while the right of Bisweswar was restricted to only a portion of Mouza Goalanda, namely to the 3 annas portion as comprised by Touzi No. 11329, he, Bisweswar, took advantage of the frequent diluvion and alluvion of the lands to dispossess all his cosharers and adversely possessed the whole of the lands. The learned District Judge has found that prior to the execution of the mortgages Bisweswar was in adverse possession of the entire Mouza Goalanda. Although his title was not perfected by 12 years adverse possession at the date of the mortgage it became so perfected before the date of the possession obtained through Court by the mortgagees. As such the Court below found that the mortgagees obtained the entire Mouza Goalanda by their mortgage sale. In appeal by Swarnamoyee Debya and others it is urged that this decision is wrong, that the mortgage deed stated that it was Estate No. 11329 bearing revenue Rs. 173 odd and consisting of 3 annas share of certain mouzas. On the other hand, the Courts have found that in the mortgage deed it was stated that the 8 annas share of Mouza Goalanda was mortgaged to each of the mortgagees. So that by the mortgage deeds Bisweswar alleged that the whole of the Mouza Goalanda was in his possession under his title to Touzi No. 11329. Both the Courts found and we agree with the view that although the two descriptions are inconsistent, the clear description that he mortgaged the whole of Mouza Goalanda should stand and though his title did not extend to the whole he was actually adversely possessing the whole and his adverse possession perfected his title before the sale in execution of the decrees. The result is that though portion of the reformed Mouza Goalanda belonged to the 4 cosharers of Bisweswar the whole of it passed to the mortgagees inasmuch as Bisweswar had dispossessed them and was himself in adverse possession of their shares.
5. The next question urged on behalf of Swarnamoyee Debya and others is that the Courts below should have held that by the auction purchase the mortgagees obtained nothing inasmuch as in their execution petitions they did not make parties certain ladies who in 1901 and 1902 had purchased this touzi for arrears of cess. On this the Courts found that the said ladies were made parties in the mortgage suits. They did not appear to defend the suits. The suits were decreed and in the execution proceedings thereafter they were not made parties. In our opinion the decisions of the Courts below on this point were correct. The two appeals of Swarnamoyee Debya and others are therefore dismissed but without costs.
6. Now comes the question of the appeals of Sailbala Debi and others. Their main point is that the Courts below committed an error in giving them only the land according to the area of old Mouza Goalanda as stated in the revenue survey maps and not the area as stated in the recent Cadastral Survey map which was finally published in 1913. This mouza as stated above diluviated three times and reformed again three times within recent years. The Settlement operations were held from 1903 onwards and the record was finally published in 1913. They found that the reformed char was much larger than the ancient Mouza Goalanda. They therefore called it Barachar Goalanda. The Courts below have come to the conclusion that Barachar Goalanda and Mouza Goalanda are not identical inasmuch as the areas are not identical. The learned District Judge stated:
The real test is the area. It is patent on the face of it that Barachar Goalanda is much vaster area than Mouza Goalanda and the nomenclature Bara Goalanda was introduced for the first time by the settlement authorities.
7. This was also the view taken by the trial Court. Further, the trial Court noted that the area of Mouza Goalundo was so much as stated in the revenue survey maps whereas the area of Bara Char Goalundo as stated by the Cadastral Survey maps of 1913 was nearly three times as much and therefore the two could not be identical. We are of opinion that the Courts misunderstood the position. The real test is not the area. When A mortgages to B a certain field bordering on the river and the field is increased by alluvion B is entitled to the increase for the purposes of the security: Section 70, Illus. (a) of the Transfer of Property Act. The area therefore is not a proper test. The question is whether this Bara Char Goalundo was a reformation of Mouza Goalundo with additions. It is not disputed that Mouza Goalundo is a portion of the Bara Char Goalundo. Because it was a very much larger area, the Settlement Authorities called it Bara Char Goalundo. It included whole mouza Goalundo plus a good deal of new lands.
8. It has been urged by Mr. Sen Gupta that these additional lands cannot be considered accretions of Mouza Goalundo inasmuch as the area of Mouza Goalundo is known from the revenue survey map. The addition must be reformations of other mouzas. As to this the settlement map does not show that Bara Char Goalundo comprised any other mouza except old Mouza Goalundo. The new lands are apparently accretions. If these happened to be reformations of other old mouzas it is for the persons who have title to those mouzas to come and make their case. Until they do so the Courts should treat mouza Goalundo as an enlarged addition of old mouza Goalundo and inasmuch as the mortgagor Biseswar Basu Mazumdar obtained possession by means of his tenants of the whole of the Bara Char Goalundo and was recorded as such in the settlement record this enlarged area must all go as security to his mortgagees. The opposite party Swarnamoyee and others derived their title in part from the heirs of the deceased Biseswar Basu Mazumdar. By their title as successors of Biseswar Basu Mazumdar they cannob resist the mortgagees' claim to the whole of Bara Char Goalundo. They also purchased the titles of two of the cosharers of Biseswar Basu Mazumdar. The Courts below have found those cosharers lost their rights by the adverse possession of Biseswar Basu Mazumdar, and there was thus no title which they could convey to the respondents. The Courts below thought it would be a dangerous proposition to hold merely because the holder of a mouza took into his head to take adverse possession of an adjoining mouza the latter would be considered to be an accession to the former within the meaning of Section 70 of the Transfer of Property Act.
9. In our opinion this does not represent the facts of the present case. If a mortgagor mortgages a house and thereafter makes an addition to the house, say, by putting up new rooms on the roof or by enlarging the bath-rooms and putting in sanitary appliances at great cost, all these additions would go as security to the mortgagee. If he however acquires by purchase or by adverse possession the adjacent house, that would not add to the security. But in the present case what happened was the whole of old mouza Goalundo was washed away by the river and after some years a new char was formed the area of which was much larger than the old mouza Goalundo. This large char was immediately taken possession of by Biseswar Basu Mazumdar and his sturdy tenants and as such by his possession he added it to the security of the mortgagees. There was here no clear demarcation between mouza Goalundo and any other specified mouza. In the result in our opinion the appeals of Sailabala and others should succeed and they will get a decree to the lands of Bara Char Goalundo as found in the finally published settlement record of 1913. With this modification the decree of the Court of Appeal below will stand. The appellants will get one set of costs from the respondents in the two appeals. Costs of the Courts below will follow the event.
S.G/R.K
10. Decree modified.
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