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PETITIONER: BECHAN PANDEY & ORS.

       Vs.

RESPONDENT: DULHIN JANKI DEVI & OTHERS

DATE OF JUDGMENT09/03/1976

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ GOSWAMI, P.K.

CITATION:  1976 AIR  866            1976 SCR  (3) 555  1976 SCC  (2) 286

ACT:      practice and  procedure-Old litigation-Must  come to an end-No remand.

HEADNOTE:      The   plaintiff-appellants   filed   a   suit   against defendants for  a declaration  of their title to the land in question admeasuring  142 bighas.  The trial Court dismissed the suit in respect of land admeasuring 28 acres and decreed the suit  in respect  of the remaining land. The plaintiffs’ suit was  held to  be barred  in respect  of  that  land  on account of  the doctrine  of waiver  and  acquiescence.  The plaintiffs were also held entitled to recover mesne profits.      On an appeal filed by some of the respondents, the High Court accepted  the appeal  and dismissed  the suit  in  its entirety. The High Court held that it was not shown that the disputed land  was the  same as  had been  purchased by Mina Kuer in  auction sale.  The High  Court also  held that  the plaintiffs’ suit for possession was barred by limitation.      The appellants contended.      (1) The  respondent did  not dispute that the suit land was the  same which  was purchased  by Mina Kuer as per sale certificate dated 26-2-1935.      (2)  In  any  case  the  matter  may  be  remanded  for determining the above issdue.      Dismissing the appeal, ^      HELD: (1)  The appellants have failed to establish that the land  in dispute  is the  same as  has been purchased in auction by  Mina Kuer  as per  sale certificate  dated 26-2- 1935. The  contention of  the appellant that the respondents did not  dispute that  the suit  land is the same as the one purchased by  Mina Kuer  is not correct. The respondents did deny this fact in their written statement. The land which is the subject  matter of  the present litigation is situate in the State of Bihar on the right bank of the Ganges. Although the land  is subject to river action, the onus to prove that the land  in dispute  in Bihar  State represents the land in U.P. which  got submerged  as a  result of  river action was upon the appellants. The appellants have failed to discharge this onus. [557F, H, 558A, E]      (2) The prayer of the appellants for remand of the case

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is rejected  because  there  was  no  valid  basis  for  the assumption of  the appellants  that the  appellants did  not dispute the identity of the land. The suit was filed as long ago as  in  January,  1950.  During  the  pendency  of  this litigation many  of the  original plaintiffs  and defendants have  died   and  are   now  represented   by  their   legal representatives. It  is time  that we draw the final curtain and put an end to this long course of litigation between the parties. If  the passage of time and laws of nature bring to an end  the lives  of men  and women it would perhaps be the demand of  reason and  dictate of prudence not to keep alive after so  many years  the strife and conflict started by the dead. To do so would in effect be defying the laws of nature and offering  a futile  resistance to the ravage of time. If human life  has  short  span,  it  would  be  irrational  to entertain a  taller claim  for disputes  and conflicts which are a  manifestation of human frailty. ’the Courts should be loth to  entertain a  plea in  a case like the present which would have the effect of condemning succeeding generation of families to  spend major  part of  their lives in protracted litigation. [558G-H, 559A-D]      Sant Narain  Mathur v. Rama Rrishna Mission A.I.R. 1974 S.C. 2241 reiterated. 556

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1432 of 1968,      (From the  judgment and  decree dated the 26-10-1959 of the Patna  High Court in appeal from original decree No. 280 of 1953.)      Sarjoo Prasad with D. Goburdhun, for the appellants.      V. S.  Desat with D. P. Mukherjee for respondents 3, 4, S, 6(a) 14 and is.      Ex parte, for respondents 1, 2, 6, 7 to 13 & 16-17.      The Judgment of the Court was delivered by      KHANNA, J.-The plaintiff-appellants field a suit in the Court of  Subordinate Judge  against  41  defendants  for  a declaration of  their title to land measuring 142 bighas, 17 kathas described  in the  schedule to the plaint situated in village Shivpur  Diar in  District Shahbad.  Prayer was also made for  delivery of  possession of  the land and for mesne profits amounting  to Rs.  4,100. The  trial court dismissed the suit  in respect  of land  measuring 28.36  acres out of plot No. 3863/ 41. Suit in respect of the remaining land was decreed. The  plaintiffs were  also held entitled to recover mesne  profits   from  defendants  who  might  be  found  in possession of  the land  decreed. On appeal by defendants 3, 7, 12  and 14  the Patna  High Court accepted the appeal and dismissed the suit in its entirety. The plaintiffs have come up in  appeal to  this Court against the judgment and decree of the  High Court  on certificate granted under article 133 (1) (a) of the Constitution.      Village Shivpur  Diar consists of five Mahals, Shivpuur Diar Nambari,  Shivpur Diar Gangbarar Shurnali, Shivpur Diar Gangbarar Janubi,  Shivpur Diar Sarju Barar and Shivpur Diar Naubarar. Each  of the  two Mahals,  Shivpur ’Diar Gangbarar Chummily  and   Shivpur  Diar   Nambari   has   18   pattis. Proprietorship rights  in each  patti were  calculated as 16 annas. One  Brahmdeo Singh  had a share of S annas 4 pies in patti Bhrighunath  Singh in  the above  Mahals. He also held different shares  in the  other pattis  of the  two  Mahals. Brahmdeo Singh  mortgaged with  possession his  share in the

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said lands  in favour  of Sitaram Sahu and Sheogulam Sahu by means of  several mortgage  deeds. As  the  mortgagees  were dispossessed from  some of  the  lands  mortgaged  in  their favour, they  filed a  suit for  recovery  of  the  mortgage amounts. Final  decree was  awarded in that suit on June 13, 1925. In  execution of  that decree  proprietary interest of Brahmdeo Singh  in Mahal  Shivpur  Diar  Nambari  and  Mahal Shivpur Diar  Gangbarar Shumali  were auctioned  on June 15, 1932 and  was purchased by Maine Kuer, widow of Sitaram Sahu mortgagee.  Sale  certificate  was  granted  to  Maine  Kuer auction purchaser  on February 26, 1935. She got delivery of possession of  the land sold in her favour on March  and 20, 1935. On  November 9,  1936  Shea  Prasad  Singh,  who  held general power  of attorney from Maina Kuer, executed a patta (lease) for  seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mahadeo Rai and others. On September 27, 1940 Sheo Prasad Singh 557 executed on  behalf of Maina Kuer a deed for perpetual lease of land  measuring 134  bighas, 17  kathas out  of the  land purchased by  her in  favour of plaintiffs 1 to 9, 14, 16 to 18 and  father of  plaintiffs 10  to 13. Three days later on September 30,  1940 Sheo  Prasad Singh executed another deed for  perpetual  lease  in  respect  of  the  remaining  land measuring 8 bighas in favour of plaintiff No. 15. On May 16, 1941 Mahadeo  Rai and  others, in whose favour lease deed of the land  had been  executed for  seven years,  relinquished their rights under the lease in favour of the plaintiffs. On July 13, 1942 Maina Kuer sold her proprietary interest which she had  acquired under  the auction sale lo Rajendra Prasad Singh and others.      The plaintiffs in whose favour deed for perpetual lease of the  land purchased by Maina Kuer had been executed filed the present  suit in January 1950 against the defendants, on the allegation  that defendants  1 to  18 had taken wrongful possession of  the land.  Prayer was also made, as mentioned above, for  recovery of  Rs. 4,100  as mesne  pretty. It was also mentioned  by the  plaintiffs  that  proceedings  under section 145  of the Code of Criminal Procedure in respect of the  land  in  dispute  had  been  initiated  but  as  those proceedings were  dropped the plaintiffs had to seek redress by means of the present suit.      The suit  was resisted by the defendants who denied the title of  the plaintiffs  or  Maina  Kuer  to  the  land  in dispute. It  was also stated that the said land had not been partitioned. Plea was also taken that the defendants had all along remained  in possession of the land and the plaintiffs suit was barred by limitation.      The trial  court dismissed the suit in respect of 28.36 acres of  land on  the ground  that the defendants had built their houses  on that  land. The plaintiffs suit was held to be barred in respect of that land on account of the doctrine of waiver  and acquiescence.  The suit  in  respect  of  the remaining land, as already mentioned, was decreed.      on appeal  the High  Court held that the plaintiffs had failed to prove their title to the land in dispute. The land in dispute, it was held, was not shown to be the same as had been purchased by Maina Kuer in auction sale. The plaintiffs suit for  possession of  the land was also held to be barred by limitation.      In appeal  before us Mr. Sarjoo Prasad on behalf of the appellants had  made a  number of  contentions, but  in  our opinion, it  is not necessary to go into all of them for the appeal is  liable to  be dismissed  on the short ground that the plaintiff-appellants  have failed  to establish that the

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land in dispute is the same as had been purchased in auction by Maina  Kuer as  per sale  certificate dated  February 26, 1935 and  was thereafter  leased on  her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940.  It is  not disputed  that if on the above view of the matter the appellants are found to have not proved their title to  the land  in dispute,  the question  of going into other  contentions  would  not  arise.  Mr.  Sarjoo  Prasad, however, sub-  mist that  the defendant-respondents  did not dispute in  the trial court that the land in dispute was the same which  had been purchased by Maina Kuer in auction sale and had been leased in favour of the 558 plaintiffs.  We   find  it   difficult  to  accede  to  this submission. In para 15 of their written statement defendants 2, 3, 12 and 14 stated as under:           "That Maina Kuer was not’ at all auction purchaser      of the property in dispute nor was she a proprietor nor      Zamindar nor  was she  at any  time in  possession  and      occupation of  the lands  in dispute. The allegation of      the plaintiff  in respect of these facts are altogether      wrong." In the  same language  is couched  para 15  of  the  written statement of  defendant No.  7 who  filed a separate written statement. It was incumbent in view of the averments in para 15 of the written statements for the plaintiff-appellants to establish by clear evidence that the land in dispute was the same which  had been purchased in auction sale by Maina Kuer and had  been subsequently  leased by  her in  favour of the appellants. The  learned Judges  of the High Court discussed the or  and documentary  evidence which  had been adduced in the case and came to the conclusion that there was no cogent material to show that the land in dispute was the same which and been  purchased by Maina Kuer and had been leased by her in favour of the appellants. After hearing Mr. Sarjoo Prasad we find  no sufficient  ground to take a different view. The land which  had been  purchased by Maina Kuer in the auction sale as  per sale  certificate dated  February 26,  1935 was situated in  Bihar district  in the State o Uttar Pradesh on the left  bank of  the Ganges. The land which is the subject matter of  the present  that land  in   situated in  Shahbad district in  the State  of Bihar  on the  right bank  of the Ganges. Although  the land  is subject  to river action, the onus to  prove that  the land in dispute in Shahbad district represents the  land which  got submerged as a result of the river action  in Bihar  district  was  upon  the  plaintiff- appellants. The  appellants have  failed as held by the High Court, to discharge this onus.      Mr. Sarjoo  Prasad took  us through the evidence of Ram Pachise Lall  (DW 3)  and Nanku  Lall Singh  (DW 5), but the evidence of  these witnesses  is far  from proving  that the land in  dispute is the same as was purchased by Maina Kuer. The evidence  of Raghunath  Prasad (PW  6),  to  which  also passing reference was made, is not sufficient to connect the land in  dispute with  sale certificate  dated February  26, 1935.      Prayer has  also been made by Mr. Sarjoo Prasad for the remand of  the case  to the  trial court  as the  plaintiff- appellants were  laboring  under  the  impression  that  the defendant-respondents had  not disputed  that  the  land  in dispute was the same as had been purchased by Maina Kuer. It is urged  that because  of that  impression, material  which could have  clearly proved  that the land in dispute was the same as  had been  purchased by  Maina  Kuer  could  not  be brought on  the record.  We find  it difficult  to accede to

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this prayer.  As already  pointed out  above, the contesting defendants clearly  stated in their written state meets that Maina Kuer  was not  the auction  purchaser of  the land  in dispute. In  view of that unequivocal averment, there was no vaIid 559 basis for  the assumption  or  the  impression  under  which plaintiff-appeliants are  stated to have labored. Apart from that, we  find that the suit out of which the present appeal has arisen  was filed  as long ago as January 1950. From the title of  the appeal  we find  that  many  of  the  original plaintiffs and  defendants have  during this  period of more than a  quarter of  century departed  and are no more in the land  of  the  living,  having  bowed  as  it  were  to  the inexorable law  of nature. They are now represented by their legal representatives. To remand the suit to the trial court would necessarily  have the  effect  of  keeping  alive  the strife between  the parties  and prolonging  this long drawn litigation by  another round  of legal  battle in  the trial court and  thereafter in appeal. It is time, in our opinion, that we  draw the  final curtain and put an end to this long meandering course  of litigation between the parties. If the passage of  time and  the laws of nature bring to an end the lives of  men and  women, it  would perhaps be the demand of reason and  dictate of  prudence not  to keep alive after so many years  the strife  and conflict started by the dead. To do so  would in  effect be  defying the  laws of  nature and offering a futile resistance to the ravage of time. If human life has a short span, it would be irrational to entertain a taller  claim   for  disputes  and  conflicts  which  are  a manifestation of human frailty. The courts should be loth to entertain a plea in a case like the present which would have the effect of con- damning succeeding generation of families to spend major part of their lives in protracted litigation. It may be appropriate in the above context to reproduce what was said  in the  case of  Sant Narain  Mafhur Ors.  v. Rama Krishna-Mission & ors.(1):           It is time, in our opinion, that we draw the final      curtain on this long drawn litigation and not allow its      embers to  shoulder for  a further length of time, more      so when  the principal  contestants have  all  departed      bowing as  it were to the inexorable law of nature. one      is tempted in this context to refer to the observations      of Chief  Justice Crete  in a  case concerning  peerage      claim made after the death without issue of the Earl of      oxford. Said the learned Chief Justice:                Time hath  its revolutions;  there must  be a      period and  an end  to all  temporal things-an  end  of      names, and  dignities and whatsoever is terrne, and why      not of De Vere? For where is Bohun? Where is Mortimer ?      Where is Mortimer ? Why, which is more and most of all,      where is  Plantagenet ?  They are  all entombed  in the      urns and sepulchers of mortality."      What was  said about  the inevitable  end of all mortal      beings, however eminent they may be, is equally true of      the  affairs  of  mortal  beings,  their  disputes  and      conflicts, their  ventures in  the field  of  love  and      sport, their  achievements and failures for essentially      they all have a stamp of mortality on them." (1) A.T.R.1974 S.C.2241. 560 one feels  tempted to  add that  if life like a dome of many colored glass  stains the  white radiance of eternity, so do the  doings  and  conflicts  of  mortal  beings  till  death tramples them down.

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    The  appeal   fails  and   is  dismissed   but  in  the circumstances without costs. P.H.P                                      Appeal dismissed. 561