Berojullah Sarkar v. Ayatullah Akand

1. This is an appeal from a decree of the Court of the Subordinate Judge at Pabna modifying a decree of the Court of the Munsif at Serajganj who decreed the suit. The appellant brought the suit, out of which this appeal arises, for khas possession after declaration of title to the lands identified by Dags Nos. 387, 393 and 394 of Khatian No. 226. The parties are members of a Mahomedan family; and it is admitted that the dags in suit were purchased in the plaintiff's name in 1914. The defendants however pleaded that the lands were purchased out of joint family funds, and that they got the lands by partition. Defendant 4 is a purchaser from defendant 1 and the defence case in appeal has been largely based on adverse possession. The trial Court decreed the suit. The lower Appellate Court confirmed that decree as to Dag No. 387 but held that the defendants bad proved their title by adverse possession to Dags Nos. 393 and 394, and it allowed the appeal to that extent.

2. The judgment of the lower Appellate Court is challenged on the ground that adverse possession for the requisite period is not established, and that the findings of the trial Court have been reversed without adequate consideration of the materials on which those findings are based. Both Courts have found that the plaintiff was the only earning member of the family, and that he purchased the lands in suit from one Imam All in 1914, and had his name registered in the landlord's sherista.

3. The members of the family were then living together but later they separated, first, defendant 1 and afterwards, defendants 2 and 3. Defendant 1 is said to have had his name entered in regard to another property in Khatian No. 165 after the separation, but he never applied for mutation of his name in regard to the property in suit. Defendant 1 sold Dag No. 393 to defendant 4 in April 1931. The final publication of the Record of Bights took place in February 1933 and the plaintiff's case is that he was dispossessed in March 1933. In the meantime defendant 4 had applied for mutation on the strength of his purchase from defendant 1 but his application was rejected on 6th July 1932.

4. The main evidence of possession, which has been relied upon by the parties, is the Record of Rights and the mutation proceedings. The learned Munsiff rejected the evidence of the Record of Rights on the ground that the area for which defendant 4 was recorded in the Khatian conflicts with the area of the land as shown in the kobala when he purchased from defendant 1, and he relies on the record in the malik's sherista, and the refusal to alter that entry on defendant 4's application for mutation as conclusive of the plaintiff's title. The issues as framed did not specifically raise a question of title by adverse possession though issue 2 is as follows: “Is the suit barred by limitation?” The learned Munsif held that no question of limitation arises in this case. The learned Subordinate Judge however says “point for decision in this appeal is whether the defendants had interest in the suit land acquired by adverse possession” and he finds that there was adverse possession. Such a finding must, to some extent, be a finding of fact, but more particularly in a case where the judgment of the lower Appellate Court is a judgment of reversal, this Court may enquire into the method adopted by the lower Appellate Court in coming to its conclusion, and enquire whether the adverse possession as found is supported by evidence, and whether the finding, which is said to be based on the proper legal conclusion to be drawn from the settlement and mutation records is justified.

5. The plaintiff in proof of his title showed that the property had been bought with his own money; that the lands had been entered in the plaintiff's name in the landlord's sherista, and that they were so entered at the time when defendant 4 purchased from defendant 1. Prima facie that is proof of the plaintiff's title. The defendants in their written statement appear to have asserted title as though they were a Hindu family. They alleged purchase out of joint family funds and allotments to defendant 1 of the suit lands on a family partition when each member of the family was granted his share. That case has been negatived, and in the lower Appellate Court the defendants alleged adverse possession. On that allegation, the onus must be on the defendants to prove that they had been in possession for 12 years and that the possession was adverse to the plaintiff. The dates throw an interesting sidelight on the defendants' claim. Defendant 1 sells Dag No. 393, which is entered in his brother's name, to defendant 4 in 1931. Defendant 4 tries to get his name entered in the mutation proceedings but his application is rejected in 1932. He then succeeds in getting his name entered in the settlement records in 1933 and according to the plaintiff's story, he immediately ousts the plaintiff from possession. Obviously the sheet anchor on which the defendants rely is the Record of Rights. The Record of Rights raises a strong presumption in favour of the recorded holder, but as this Court has pointed out in 38 CWN 7631 at p. 770, the Record of Rights is presumptive evidence of the state of things at the date the Record of Rights was prepared, and cannot ordinarily raise a presumption in favour of the defendant of possession at some earlier date.

6. The learned Judge in the lower Appel, late Court is in error in stating that the presumption from the Record of Rights is that defendant 1 did possess the suit lands “all along,” and it is probably this error which induced the learned Judge to draw inferences from other circumstances which appear to me to be untenable. It was for the defendants to show that they had been in possession for 12 years prior to suit.

7. The learned Judge assumes an assumption, which appears to me quite unwarranted, that defendant 4 would not purchase from defendant 1 if the plaintiff was in possession, but the fact remains that the purchase was made when the plaintiff was recorded as being in possession the defendants have set up a case of purchase of the property out of joint funds. That case has been shown to be false, and I cannot agree with the learned Subordinate Judge that it is hard to believe that the defendants would effect a sale in the hopes of obtaining title and possession thereafter. Nor am I able to follow the learned Judge's argument when he refused to believe the plaintiff's bargadar on the question of possession, giving as his reason that the bargadar does not depose to any overt acts of ouster by the defendants in March 1933. Again, the learned Judge found that the jote stood in the name of the plaintiff all the while. He then finds that the plain, tiff and defendant 1 remained in joint possession of the jote in suit and the plain, tiff and defendant 2 remained in joint mess and, so far as I can follow his argument, his conclusion is that because the plaintiff and defendants were in joint possession there was no need to alter the recorded entry which recorded the plain, tiff's name alone. The learned Judge does not seem to take into consideration the fact that such joint possession does not constitute adverse possession. It appears, therefore, that the only evidence on which the defendants can rely, in support of their plea of adverse possession, is the entry in the Record of Rights, and both Courts have found that entry is erroneous in one respect and subject to correction, for the area recorded is not the area which was sold to defendant 4.

8. The appellant has relied strongly on the mutation proceedings which resulted in his favour in 1932. He contends that was a decision under Section 57 of the Bengal Land Registration Act, and was a conclusive decision with regard to the plaintiff's possession in 1932. If that is so, adverse possession for 12 years before the suit has not been proved. For the respondents it is contended that this order on which the appellant relies was an order by the sub-divisional officer from the Khas Mehal Office, and that it did not have the effect of an order by the Collectrate under the Land Registration Act, being merely an executive order made under the directions contained in the Bengal Government Estate Manual. It appears however that this land has a tonzi number, namely, 1745, and that it is therefore entered in the general register and has a separate account, and reference is made to Section 84 of the Bengal Land Registration Act, and to the rules made under the powers granted by S. 88 which enable the Collector to delegate his duties. I am inclined to accede to the appellant's argument and to hold that the decision in the 1932 mutation proceedings was a decision of possession in favour of the plaintiff, but this finding becomes unnecessary in view of my decision that there is no proof of adverse possession during the 12 years immediately prior to action brought.

9. The appeal must therefore be allowed, the decree of the lower Appellate Court in so far as it dismissed the plaintiff's suit for khas possession and declaration as regards Dags Nos. 393 and 394 of Khatian No. 226 is set aside and that of the trial Court is restored. The appellant is entitled to his costs of this Court and half the costs of the lower Appellate Court from defendants 1 and 4. Leave to appeal under S. 15, Letters Patent, is refused.

A.L/R.K

10. Appeal allowed.