1961 Supreme(Pat) 85

HIGH COURT OF PATNA
V. RAMASWAMI, R. K. CHOUDHARY, JJ.
Tapesar Raut
Versus
Ram Jatan
Letters Patent Appeal No.28 of 1956
Decided On : 12-09-1961

The onus of proof lies on the defendant to prove that he had acquired the limited right of Shikmi tenant by adverse possession.

Headnote:

LETTERS PATENT APPEAL - MAINTAINABILITY - JUDGMENT - MEANING - ORDER OF REMAND - WHETHER JUDGMENT - LETTERS PATENT (PATNA) CL.10 - LIMITATION ACT (IX OF 1908), ARTS. 142 AND 144 - ADVERSE POSSESSION - SHIKMI TENANT - ONUS OF PROOF.

Fact of the Case:

Plaintiffs purchased plot No.2743 of Khata No.165 of village Dhorlahi from the recorded tenant Dharichhan Singh. The defendants first party interfered with their possession and so they brought the present suit for a declaration of their title and for recovery of possession. The trial court held that the sale deeds upon which the plaintiffs relied conveyed no title and the trial court further held that the defendants first party were in possession of the land as Shikmidars from 1332 Fasli. The plaintiffs took the matter in appeal, and the subordinate judge held that the sale deeds upon which the plaintiffs relied were genuine and for consideration. He further held that the defendants first party had failed to prove that the land in suit was in their possession continuously for a period of twelve years as shikmidars. On these findings the subordinate judge held that the plaintiffs were entitled to a decree in the terms they had asked for in the plaint. The defendants came up in second appeal to the High Court. It was argued in the second appeal that the suit was governed by Article 142 of the Limitation Act and not by Article 144 of the Limitation Act. The argument was accepted by Sahai, J. who set aside the decree and judgment of the lower appellate court and remanded the case to the lower appellate court for a finding as to whether the plaintiffs or their vendor had succeeded in establishing that they were in possession of the disputed land at any time within twelve years of the suit. It was also directed by the learned judge that if it was found that the plaintiffs or their vendor had failed to establish their possession within twelve vears of the suit then the suit must be dismissed so far as their prayer for Khas possession was concerned.

Finding of the Court:

The court held that the appeal under the Letters Patent is maintainable in the present case under Cl. 10 of the Letters Patent. The court further held that the proper Article to apply was Art. 144 of the Limitation Act and the onus lay on the defendant to prove that he had acquired the limited right of Shikmi tenant by adverse possession.

Issues: 1. Whether the appeal under the Letters Patent is maintainable? 2. Whether the suit was governed by Article 142 or Article 144 of the Limitation Act?

Ratio Decidendi: 1. The court held that the judgment of Sahai, J. allowing the second appeal and remanding the case for re-hearing is a judgment within the meaning of cl. 10 of the Letters Patent, and it follows, therefore, that the present appeal under that clause of the Letters Patent is competent. 2. The court held that the decision of the Full Bench in AIR 1958 Pat 386 (FB) applies to the present case, and in view of the principle laid down in that decision the onus lay on the defendant to prove that he had acquired the limited right of Shikmi tenant by adverse possession.

Final Decision: The court allowed the appeal under the Letters Patent and set aside the decision of the learned Single judge, dated the 28th May, 1956, and restored the judgment and decree of the lower appellate court dated the 8th September, 1951.