1. At the time of the first Settlement in Berar it was not uncommon for villagers residing in the villages in that province to apply for and obtain from Government fields on the full survey assessment to be used as grazing grounds for the village cattle. As the fields were let on assessment it was necessary to have a khatedar or person responsible for that assessment and therefore such fields were entered in the name of a particular villager though they were in reality the property of the villagers as a body. They collected among themselves the annual assessment and paid it to the khatedar who in turn paid it to Government. These observations are pertinent in the present case: for there is little doubt that it deals with land so obtained for village purposes.
2. The plaintiff filed this suit claiming possession of survey numbers 96 P-2 and 99 of mouza Pahur Turk on the basis of a sale deed Exh. P-1 executed in his favour by Shaikh Imam and his two sons on 26-8-1916. The consideration for the sale deed is said to be Rs. 7000/-. The defendants in this case represent the entire body of villagers of the village. These fields are said to have once been the property of Rodi son of Kaduji who kept them waste for the use of the village cattle. He mortgaged them with one Deoki-nandan Onkardas of Khamgaon under two registered deeds Exhs. D-1 and D-2 on 29-7-1872 for Rs. 250/-. At about that time he relinquished his rights over the fields in favour of the villagers who are thereafter said to have occupied the fields as full owners from 9-1-1891 when the mortgagee gifted his rights under the mortgage in favour of the villagers for the grazing of the village cattle by a registered deed of gift of that date, viz. 9-1-1891 (Ex. D-3). It was stated that out of survey number 99 about four acres of land was made revenue free for the use of the village in 1903. Shama son of Jairam, defendants pleaded, had no ownership over these fields. He was merely their khatedar being the grandson of Rodi and the villagers to protect themselves purchased survey No. 99 by a registered sale deed (Ex. D-7) in favour of some of them. The sale in favour of Sheikh Imam by Shama son of Jairam dated 26-4-1905 is said to have conferred no title on him and Sheikh Imam and his sons had no right to sell to the plaintiff. The villagers are said in any case to have become owners of the fields by adverse possession. Consideration for the plaintiff's sale deed was denied and the deed was said to be champertous and against public policy. It was futher pleaded that the present suit was time-barred as no suit was brought to set aside an order of the criminal Court under section 146 passed against Sheikh Imam. For the plaintiff it was admitted that Rodi was the original tenant of the fields. The two mortgages were admitted but it was denied that the tenant had ever relinquished his rights in favour of the villagers. The deed of gift of 9-1-1891 was also admitted. It was also admitted that the villagers have been grazing their cattle on these fields since 1891 but not as owners but as mortgagees under a deed executed by Rodi as mortgagor. The sale deed of 29-1-1891 was also admitted but it was pleaded that it was never acted upon. Plaintiff denied knowledge of the criminal proceedings under section 145, and denied that Shama and Sheikh Imam were parties to it.
3. The case eventually went to trial on the following issues:—
(1) Whether the mortgage transaction of 29-7-1872 as evidenced by the two deeds of that date was usufructuary one and was intended to be such and was acted upon as such.
(2) Whether Rodi relinquished his ownership over survey Nos. 96 and 99 of Pahur Turk of ally in or about 1872?
(3) Whether the possession of the defendants was that of mortgagee or owner?
(4) Whether Shama was owner of the field No. 99, when he sold it to Imam and three others in 1891, and whether the vendees acquired any right to it?
(5) Whether the purchase by Imam and three others was for themselves or for the villagers of Pahur ????
(6) If it were held that the defendants were in possession as mortgagees till 1891 was the character of that possession changed thereafter and became adverse to the plaintiff or his vendor?
(7) Whether the sale deed of survey No. 99 was not acted upon and whether it had been inoperative?
(8) Whether Shama had any right to convey the fields to plaintiff's vendor in 1905? Whether plaintiff's sale deed is bogus and opposed to public policy?
(9) Whether the defendants have acquired title by adverse possession to the fields in suit?
(10) Whether the plaintiff or his vendor was in possession within twelve years before the institution of this suit?
(11) Whether the plaintiff can redeem and if so for what amount?
(12a) whether any proceedings under section 145 of the Cr PC were started against Sk. Imam, his sons and Shama in respect of these fields by the villagers of Pahur Turk?
(b) If so, were they decided against Imam, his sons and Shama?
(c) If so, whether this suit is barred under Article 47 of the Indian Limitation Act, Sch. II.
(d) If Imam, Amir and Shama were not parties to the proceedings are they bound by the order published?
(e) Whether Imam took the sale deed of 26-4-1905 from shama for himself and his two sons.
(f) If not, is plaintiff precluded from bringing this suit, if it is found that Sk. Imam and Amir were not parties to the criminal proceedings under section 145 of the Criminal Proceedure Code?
4. The findings on the trial Court on these issues are as follows:—
Issue 1. No possession was given to the mortgagee and the mortgagee gifted his rights by Ex. D-3 to Raoji Kamaji and Maroti Edaji with directions to keep the land as grazing land for the village cattle. The deeds were never treated, or acted upon as usufructuary mortgage deeds.
Issue 2. It was not proved that Rodi had relinquished his ownership over these fields about 1872.
Issue 3. The possession of the villagers was adverse to the registered occupant Rodi from or about the date of the mortgages. The equity of redemption had become vested in the villagers who stepped into the shoes of the mortgagor and by securing the deed of gift the rights of the mortgagor and mortgagee were vested in the same person namely the villagers the mortgage being extinguished. As regards Ex. D-7, the sale deed for field survey No. 99 in favour of Imam, Imam got no title under it. It was found that defendants were in possession of the two fields as owners and not as mortgagees.
Issue 4. It was found that Shama had lost his rights to the fields in suit by adverse possession of the villagers; he has no rights left over survey No. 99.
Issues 5, 6, 7 and 8. The Court-held that the sale deed Ex. D-7 of 1891 was taken for the whole community. Shama severed his connection with the field No. 99 entirely in 1891. Since then he never exercised any act of ownership over this field. His vendees also were never in possession of the field, their title, if any, having passed to the villagers. He had nothing to give to Sheikh Imam by the second sale of 1905 It was further held that plaintiff did not see the fields before he purchased them and that though these were the only fields he ever bought he made no enquiry. The entire business appears to be suspicious and plaintiff knew that he was purchasing a litigation. He did not pay anything to his vendors. The sale was of a mere right to sue and therefore unlawful.
Issue 12 (a to f). As regards the proceedings under section 145 the Court finds that the record of these proceedings has been destroyed but the evidence of the Patwari (D.W 8) proves that proceedings started against Sheikh Imam, Munir and Shama as Munir wanted to bring fields Nos. 96 and 99 under cultivation. The concluding portion of the order passed under that section was found to be:—
“The rights of Sk. Imam as a joint kabjedar are maintained but he is hereby forbidden to break the land and bring it under the plough until he established his rights to do so in the civil Courts.”
5. The Court finds that the order was clearly against Sheikh Imam, his son Sheikh Munir and Shama and they are bound by the order. Article 47 of the 2nd Schedule of the Limitation Act applies Co. all persons bound by an order under section 145 of the Cr PC and to any person who may claim the property through any such person under a title subsequent to such order. The plaintiff who derives his title through Munir and Sheikh Imam was bound by this order. There is nothing to show that plaintiff and his vendors were in possession for more than 30 years in their own right. Plaintiff was found to have obtained no title under the sale and the suit was dismissed with costs it has to be remembered that plaintiff treated the villagers in the case as mortgagees and sued in the alternative to redeem the mortgages executed by the khatedar Rodi in 1872. The lower appellate Court finds that the mortgages Exs. D-1 and D-2 were not possessory mortgages but simple mortgages. The fields had been used as pasture grounds by the villagers at least from 1872 and the mortgagee was never in possession of them. It seems to me the villagers on learning of the mortgage subscribed funds among themselves to redeem the mortgage but it was not redeemed at once. The mortgagee was prevailed upon to relinquish his rights in favour of the villagers. It was found that the villagers became owners of the land since 1891 when Rodi's grandson Shama executed a sale deed Ex. D-7 in ‘respect of field No. 99 and when Onkar gave the deed of gift Ex. D-3. There was no evidence to show that Shama was in possession of the field at any time before 1891 when he sold it formally to the villagers including Imam. The sale Ex. D-7 by Shama was for the benefit of the villagers and issues Nos. 6 and 7 were found to have been rightly decided against the plaintiff Shama being found to have lost his title in 1891 when the villagers held the field as owners. It was further found that plaintiff had purchased a mere right to sue for a fictitious amount and the transaction was not bona fide. Plaintiff had no right to redeem the mortgage of 1872 and the vendors Shama and Sheikh Imam had no subsisting right to the property in 1905 and 1916 when they conveyed the fields respectively in favour of Imam and plaintiff. Dealing with the case under section 145 of the Cr PC, the learned Judge writes:—
“The final order under section 145 of the Cr PC was passed on 29-1-1914. See the certified copy Ex. P-7. Exs. D-8 and D-9 show that the record has been destroyed. The name of Sheikh Mtinir son of Imam is only stated in the order as the accused but the evidence of defendant's witnesses show that Imam, his son Amir and Shama were parties to the proceedings. I see no reason to disbelieve the oral evidence on the point. Sheikh Imam's name is specifically mentioned in the order at the end and he was expressly forbidden to break up the land and bring it under the plough, until he established his right to do so in the civil Court. Imam died recently at the age of 100 years. His sons Munir and Amir look after the family property. These young men meant to cultivate the fields. They started the quarrels with the villagers about the fields and it is but natural that they were impleaded in the proceedings. Imam's sons joined him in executing the Ex. P-1 in plaintiff's favour. Thus the fields were treated as belonging to the three persons. All the three were thus bound by the final order and it is clear that the plaintiff's suit brought in June 1918 is barred under the 3 years rule under Article 47 of the Indian Limitation Act. The lower Court's finding on 1;he point is thus quite correct and I find that the plaintiff's suit is barred under Article 47 of the. Limitation Act.”
6. It was further found that Government remitted the assessment on 4 acres of land out of surrey No. 99 at the instance of the villagers in 1903 and set apart the plot for the use of the villagers, Imam raising no objection to the order. The entries in the Record of Rights were further in favour of the villagers. The lower appellate Court finds plaintiff is not entitled to possession under his sale deed. It was also found that the Patel always paid the assessment in respect of fields in suit from 1903 up to 1916-1917. The appeal was dismissed.
7. The material findings disposing of the case in the lower appellate Court are findings of fact and it is difficult to see how they can be challenged in second appeal. It seems to me abundantly clear that Rodi who held the land on behalf of the villagers was false to his trust and that he mortgaged to the Halwai. That person releasing the possession surrendered his rights he possessed under the mortgages to the villagers. That being so, it is difficult to understand how the plaintiff has any right to redeem. He could only have that right if Rodi was the real owner of the fields. But the evidence on record very conclusively shows that he was not. He was holding for the villagers and therefore it seems to me that no question arises as to the redemption of these mortgages. It has been found that prior to 1872 the land was used as grazing land. As to field No. 96 the case of defendants was that of adverse possession always; that has been found as a matter of fact. Further it seems to me clear on the findings that Sheikh Imam was a party to the proceedings under section 145. Any suit against that order is bound by the three years rule and plaintiff is as much bound as Sheikh Imam and his sons would have been.
8. The question whether the purchase was champertors and whether all that the plaintiff purchased was a mere right to sue is only of academic importance. I am aware that there is no law in force in India similar in its effect to the English law of Champerty and Maintenance so as to render void an agreement which would, were such English law applicable, be considered champertous. See Bhagwat Dayal v. Debi Dayal [1908] 35 Cal. 420 , 35 I.A 48 , 10 Bom. L.R 230 , 12 C.W.N 393 , 7 C.L.J 335 , 5 A.L 184 , 18 Md.L.J 100 , 3 M.L.J 344 , T 14 Bur. L.R 49 (P.C). And it may be that in the present case even if no consideration passed plaintiff had a right to sue. But the finding that his vendor had no title so to convey to him is fatal to his cause.
9. The question whether Onkar enjoyed possession of the mortgaged fields or not is one of fact; and there are ample grounds for holding that the villagers held the fields not us mortgagees but as owners; and in my opinion the finding that Shama lost all interest in field No. 99 when he conveyed the same by Ex. D-7 to the villagers including Imam is correct, I do not think that the lower appellate Court has misconceived the evidence of D.Ws 1, 2 and 11 in connection with Exs. D-7 or its findings on grounds 5 and 6 of the appeal before it are erroneous. There is no force in grounds 6, 7, 8 and 9 of the memorandum of appeal. As already stated, the material questions upon which the case turns are all questions of fact except possibly the question whether the villagers held as mortgagees or as owners. But the evidence in my opinion makes it clear that since 1872 they held as owners and that the fields were then in Rodi's name for village grazing purposes. These cases are not uncommon where the khatedar or kab-jadar in whose name such fields were put by the villagers or their successor as khatedars have in violation of their trust sold or mortgaged to others and it is impossible to believe that the plaintiff before he bought was unaware of the nature of the dispute he was buying. He knew that the fields belonged to the villagers. He knew they would contest any attempt on his part to obtain possession but for his own purposes he was content to contest the question of ownership in the civil Court. He has tested it and he has lost. The findings of the Courts below except possibly as regards the question of plaintiff's right to sue, have my full concurrence.
10. While this appeal was pending one of the respondents Govinda died and the appeal as against him abated though it continued against the others.
11. The suit in my opinion has been correctly decided. The result is that this appeal fails and is dismissed with costs.
12. Appeal dismissed.