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PATNA HIGH COURT
Rai and Raj Kishore Prasad JJ.
Rudra Pratap Singh
Versus
Jagdish Maharaj
Appeal from Original Decree No. 56 of 1947 ;
Decided On : SEPTEMBER 06, 1955
TENANCY - Settlement of land - Possession - Dispossession - Limitation - Bihar Tenancy Act (VIII of 1885), Schedule III, Article 3.
Fact of the Case:
Plaintiffs instituted a suit for declaration that the lands in suit were their raiyati lands and for possession of the same with mesne profits either from defendant 1 or from defendant 2. The case of the plaintiffs was that plaintiff 1 was the hereditary herald (kavi) of the family of the late Maharaja Harballabh Narain Singh, the maternal grandfather of defendant 1. Near about the year 1933 there cropped up a litigation with respect to the properties left by Maharaja Harballabh Narain Singh. His gotias claimed that the inheritance to the properties was governed by the rule of lineal primogeniture, while the present defendant 1 contended that there was no such custom in the family of the late Maharaja. During that litigation plaintiff 1 rendered valuable services to defendant 1 in lieu of which the lands in suit having an area of about 100 bighas 1 katha 5 dhurs set out in schedule 1 attached to the plaint were settled with him on an annual jama of Rs. 6-7-3 including cess. After the settlement, plaintiff 1 came in possession of the same. On 2-12-1938, plaintiff 1 sold half of the settled lands to plaintiff 2 by means of a registered sale deed after which the latter came in possession of the vended property. Some time in the year 1346 Fasli there cropped up a dispute with respect to the possession of the lands in question which ultimately resulted in a proceeding under Sec.145, Criminal P. C. This proceeding terminated against the plaintiffs and in favour of the present defendant 2 which necessitated the institution of the present suit.
Finding of the Court:
The Court found that the lands in suit had been settled with plaintiff 1 and that he had acquired a tenancy right in them. The Court also found that plaintiff 2 had acquired a valid title to one half of the said lands by virtue of the sale deed dated 2-12-1930. The Court further found that the plaintiffs were in possession of the lands in suit till the proceeding under Sec.145, Criminal P. C. The Court held that the alleged settlement by defendant 1 with defendant 2 was a sham transaction, and that defendant 2 never came in possession of the properties in suit under that alleged settlement. The Court also held that the suit was not barred by limitation.
Issues: 1. Whether the story of settlement with plaintiff 1 was a correct one? 2. Whether the plaintiffs were in possession of the lands in suit till they were dispossessed during the proceedings started under Sec.145, Criminal P. C.? 3. Whether the case of the plaintiffs that he had rendered valuable service to defendant 1 during the litigation for Sonbarsa Raj Property is correct? 4. Whether the sanad (Ex. 6) was a genuine document and it in fact does not disclose the factum of any settlement with plaintiff 1? 5. Whether the grant of the receipt Ex. 7 and the sanad Ex. 6 amounted to merely an agreement to settle and that plaintiff 1 would not be deemed to have acquired any tenancy right until he succeeds in establishing his possession by virtue of that settlement? 6. Whether the present suit was barred under Schedule III, Article 3, Bihar Tenancy Act?
Ratio Decidendi: 1. The Court held that the story of settlement with plaintiff 1 was correct and that he had acquired a tenancy right in the lands in suit. The Court relied on the evidence of plaintiff 1, P. W. 3, Sahasram Mandal and P. W. 9 pukhi Mandal to establish the factum of measurement, possession, and reclamation. The Court also relied on the evidence of D. W. 4, Babulal Bhasrat, the tahsildar of village Kampa, who admitted during his cross-examination that 60 bighas out of the lands in dispute were being cultivated before the settlement with defendant 2. 2. The Court held that the plaintiffs were in possession of the lands in suit till they were dispossessed during the proceedings started under Sec.145, Criminal P. C. The Court relied on the evidence of P. Ws. 1, 3, 6 and 9 to establish the fact of possession. The Court also relied on the evidence of D. W. 4, Babulal Bhasrat, who admitted during his cross-examination that most of the lands settled were cultivated and some were jungle. 3. The Court held that the case of the plaintiffs that he had rendered valuable service to defendant 1 during the litigation for Sonbarsa Raj Property is correct. The Court relied on the evidence of plaintiff 1 and the letter (Ex. 8-d), dated 13-12-1933, written by defendant 1 to plaintiff 1. 4. The Court held that the sanad (Ex. 6) was a genuine document and it in fact discloses the factum of any settlement with plaintiff 1. The Court relied on the evidence of plaintiff 1 and P. W. 4. Bishwanath Kamatia, to establish the genuineness of the sanad. The Court also relied on the letter Ex. 8 admittedly written by defendant 1 to plaintiff 1 in which defendant 1 had specifically mentioned that a sanad had been executed in favour of plaintiff 1. 5. The Court held that the grant of the receipt Ex. 7 and the sanad Ex. 6 amounted to more than merely an agreement to settle and that plaintiff 1 would be deemed to have acquired a tenancy right in the lands in suit. The Court relied on the decision in Mahomed Hanif V/s. Khairat Ali, AIR 1941 Pat 577 (A) to hold that the plaintiff will be deemed to have entered in possession of the entire area though he had reclaimed and brought under cultivation only a portion of the area in the first year and another portion of the area in the second year. 6. The Court held that the present suit was not barred under Schedule III, Article 3, Bihar Tenancy Act. The Court held that the provisions of Schedule III, Article 3, Bihar Tenancy Act, do not apply to the facts and circumstances of the present case. The Court relied on the decision in Jurawan Singh V/s. Ramsarekh Singh, AIR 1933 Pat 224 (B) to hold that in order to attract the operation of Schedule III, Article 3, Bihar Tenancy Act, it must be established that the tenant was dispossessed by the landlord qua the landlord. The Court held that in the present case the plaintiffs were in fact dispossessed by the order of the Magistrate on 8-6-1939, when the lands in suit were attached under Sec.145(4), Criminal P. C., vide Ex. 18-C. The Court also held that the plaintiffs were not dispossessed by defendant 1 in January 1941, as alleged in paragraph 18 of the plaint.
Final Decision: The Court dismissed the appeal and upheld the judgment and decree passed by the Court below.
Rai, J.
1. The plaintiffs instituted the suit, out of which the present appeal arises, for a declaration that the lands in suit are their raiyati lands and for possession of the same with mesne profits either from defendant 1 or from defendant 2. The case of the plaintiffs may be shortly stated as follows: Plaintiff 1 was the hereditary herald (kavi); of the family of the late Maharaja Harballabh Narain Singh, the maternal grandfather of defendant 1. Near about the year 1933 there cropped up. a litigation with respect to the properties left by Maharaja Harballabh Narain Singh.
His gotias claimed that the inheritance to the properties was governed by the rule of lineal primogeniture, while the present defendant 1 contended that there was no such custom in the family of the late Maharaja. During that litigation plaintiff 1 rendered valuable services to defendant 1 in lieu of which the lands in suit having an area of about 100 bighas 1 katha 5 dhurs set out in schedule 1 attached to the plaint were settled with him on an annual jama of Rs. 6-7-3 including cess. After the settlement, plaintiff 1 came in possession of the same.
On 2-12-1938, plaintiff 1 sold half of the settled lands to plaintiff 2 by means of a registered sale deed after which "the latter came in possession of the vended property. Some time in the year 1346 Fasli there cropped up a dispute with respect to the possession of the lands in question which ultimately resulted in a proceeding under Sec.145, Criminal P. C. This proceeding terminated against the plaintiffs and in favour of the present defendant 2 which necessitated the institution of the present suit.
2. The suit was contested by both the defendants. They denied the alleged settlement of the lands in dispute with plaintiff 1. They pleaded that the sale deed in favour of plaintiff 2 was a sham document According to these defendants, defendant 1 permanently settled the lands in dispute with defendant 2 in the year 1345 Fasli, and since the date of that settlement defendant 3 has all along been coining in possession of the same.
They averred that defendant 2 had been rightly held to be in possession by the criminal Courts. It was further pleaded by the defendants that the suit was barred by general and special law of limitation. On these and other pleas they asserted that the suit was fit to be dismissed.
3. The suit was heard by the learned Subordinate Judge, Madhipura, who accepted the version of the plaintiffs and held that the lands in suit had been settled with plaintiff 1. He also held that plaintiff 2 had acquired a valid title to one half of the said lands by virtue of the sale deed dated 2-12-1930. He held that the plaintiffs were in possession of the lands in suit till the "proceeding under Sec.145, Criminal P. C. According to him, the alleged settlement by defendant 1 with defendant 2 was a sham transaction, and that defendant 2 never came in possession of the lards in suit. The learned Subordinate Judge further held that the suit was not barred by limitation. On these findings the suit was decreed with costs. The amount of mesne profits was ordered to be ascertained in a subsequent proceeding.
4. Defendant 1 thereafter came up in appeal before this Court. Learned Counsel for the appellants contended that it was for the plaintiffs to establish by reliable evidence that the lands in suit, had been validly settled with plaintiff 1 and that he had acquired a tenancy right in them. Learned counsel did not challenge the finding of the Court below to the effect that the alleged settlement with defendant 2 was a sham transaction, and that she had never come in possession of the properties in suit under that alleged settlement. But he submitted that in any case it is for the plaintiffs to establish their title before they can succeed in this action.
5. So the first question to be decided is whether the story of settlement with plaintiff 1 was a correct one. Plaintiff 1 who was examined on commissio
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