1971 Supreme(Pat) 90

PATNA HIGH COURT
Shambhu Prasad Singh and Shiveshwar Prasad Sinha JJ.
Jageshwar Mandal
Versus
Mostt.Safia
Appeal from Original Decree No. 518 of 1964 ;
Decided On : AUGUST 03, 1971

The onus lies upon the defendants to prove their possession over the suit land for more than 12 years so as to bar the plaintiffs title for recovery of possession over the land.

Headnote:

THIKA DEED - POSSESSION - ARBITRATION AWARD - REGISTRATION - ADMISSIBILITY - BURDEN OF PROOF - ORAL EVIDENCE - RELIABILITY - CONTINUOUS POSSESSION - INTERRUPTION - TITLE - RECOVERY OF POSSESSION - MESNE PROFIT - AMENDMENT OF DECREE.

Fact of the Case:

Plaintiff Tuna Mian filed a suit for recovery of possession over 7.71 acres of land in Mauza Salempur Saini appertaining to Khata Nos. 43, 33, and 67. The land was given on Thika to defendant No. 1 for a period of three years commencing from Jeth 1360 Fasli and ending in Jeth 1363 Fasli on an annual rental of Rs. 800.00 by means of a registered Thika deed dated 20th May, 1953. Defendant No. 1 paid the Thika rent for the first two years of the lease and for a part of the third year. When the Thika expired, defendant No. 1 did not give up possession and instead got a petition under Sec.144 of the Code of Criminal Procedure filed in the name of Tuna Mian and obtained an ex parte order against Tuna Mian and in his favour. Tuna Mian had, however, no knowledge of it. The matter relating to the possession of the disputed land came to a head, when Tuna Mian wanted to take possession of the land and occasion for a serious riot between Tuna Mian and defendant No. 1 arose. At this stage, on 4-6-1957 their dispute was referred to a Panchayati constituted of twelve persons and they are said to have jointly elected, on 13-6-1957, one Ram Sundar Mandal as an umpire. According to the plaintiffs, the Pan-chas decided that defendant No. 1 should give up the land and Tuna Mian should forgo the arrears of rent due against defendant No. 1 and should pay Rs. 200/-to the said defendant towards the price of the sugarcane crop standing on a part of the land. In pursuance of the decision of the Panchas, the plaintiffs case is that a sum of Rs. 200.00 in cash was paid to defendant No. 1 and Tuna Mian was given possession along with the standing crop. Thereafter the plaintiffs constructed a hut on a part of the land and grew crops such as Rahar, Kalai etc. on the land. Notwithstanding the acceptance of the cash amount of Rs. 200.00 from Tuna Mian, defendant No. 1 reported to the police about an apprehension of a breach of the peace. The Sub-Inspector of Police, Colgong recommended, vide his report dated 6th October, 1957, for proceedings under Sec.145 of the Code of Crimnal Procedure to be started in the matter. The police also got a proceeding under Sec.107 of the Code of Criminal Procedure started against Tuna Mian and a large number of his relations but the same was dropped. The proceedings under Sec.145 of the Code of Criminal Procedure was registered as Miscellaneous case No. 457 of 1957. The sub-divisional Officer, Sadar by his order dated 10th July, 1958 declared the possession of defendant No. 1. The crops grown in the disputed land were auctioned for a sum of Rs. 1700.00 and the amount was kept in deposit with the Sub- Divisional Officer. As stated earlier, the plaintiff instituted the suit in the Court of the Munsif first court, Bhagalpur on 4th August, 1958, which on the question of valuation came to be filed before the learned Subordinate Judge, Bhagalpur on 28th October, 1958.

Finding of the Court:

1. The execution of the Thika deed, Exhibit 1 was not procured by fraud or undue influence. 2. The matter relating to the title and possession over the suit land was in fact referred to Panches and under the award of the Panches, Exhibit 2 Tuna Mian remitted the arrears of Thika rent and he further paid a sum of Rs. 200.00 to defendant No. 1 as compensation for the sugar-cane crop standing over a portion of the suit land. 3. Tuna Mian, the original plaintiff, had come in possession of the disputed land after the verdict of the Pan- ches. 4. The defendants had failed to prove that they had been in continuous possession as under-raiyat over the suit land for a period of more than 12 years before the filing of the suit and that the plaintiffs were therefore entitled to recover khas possession of the suit land, the defendants being mere trespassers.

Issues: 1. Whether the defendants had established their right as an under raiyat by being in possession of the suit land for more than 12 years before the filing of the suit? 2. Whether the suit was based on an arbitration award, which was an unregistered document and had not been made a rule of the Court? 3. Whether the defendants case of being in possession of the suit land for more than 12 years before the filing of the suit had been wrongly rejected by the court below?

Ratio Decidendi: 1. The defendants failed to prove their possession over the suit land as under raiyat for a period of more than 12 years before the filing of the suit. 2. The suit was not based on the arbitration award, which was an unregistered document and had not been made a rule of the Court. 3. The defendants case of being in possession of the suit land for more than 12 years before the filing of the suit had been rightly rejected by the court below.

Final Decision: The appeals are dismissed with costs.