11 August 1964
Supreme Court


Case number: Appeal (civil) 625 of 1960






DATE OF JUDGMENT: 11/08/1964


CITATION:  1965 AIR  875            1965 SCR  (1)  20  CITATOR INFO :  F          1972 SC1408  (12)

ACT: Indian Limitation Act, 1908 (9 of 1908), Arts. 142, 144-Suit for  Ejectment-Plaintiff’s title admitted but possession  as tenant claimed Whether Art. 142 or Art. 144 applies.

HEADNOTE: One M brought a suit in the Munsif’s Court against a  number of  persons including the appellants for a declaration  that certain  land  constituted  the  bakshat  interest  of   the plaintiff,  who had been and continued to be  in  possession and  occupation thereof.  In the alternative he  prayed  for possession   if  the  plaintiff  be  deemed  to  have   been dispossessed  for a proceedings under s. 144 of the Code  of Criminal Procedure had cast a doubt on his title.  This suit followed  the  proceedings  under  s. 144  of  the  Code  of Criminal Procedure which resulted in a decision against  the plaintiff.   The  defendants did not deny the title  of  the plaintiff  but asserted that the plaintiff gave these  lands to the defendants to cultivate them on batai over more  than 25  years  ago, and since then the defendants had  been  and were  in peaceful cultivating possession over the  same  and had  also  acquired occupancy rights in  them.   The  Munsif dismissed  the suit upholding the pleas of defendants.   The plaintiff  appealed and succeed before the Appellate  Court, which was of the view that the onus was on the defendants to prove  that they were rayats of the land and that  they  had occupancy rights in these lands and that the defendants  had not  been  able  to prove their case  about  settlement  and possession.   The High Court, on appeal by  the  defendants, held  that having regard to the facts and  circumstances  of this  particular case, the burden was on the  defendants  to show  whether they have been in possession for 12  years  or more, and dismissed the appeal.  On appeal by special leave, HELD  : On the facts of the case Art. 144 and not  Art.  142 applied. If  a defendant not only admits title of the  plaintiff  but also  admits that he derived possession from the  plaintiff- as a tenant, the case must proceed on the defendant’s  plea, and for the purpose of deciding whether Art. 142 or Art. 144 applied, it must be assumed that the plaintiff has not  been



dispossessed  or has not discontinued his possession  within the  meaning of Art. 142, for neither the plaintiff nor  the defendant alleges decision or discontinuation of ion.  [24F- F] Jaldhari v. Rajendra Singh, A.I.R. 1958 Pat. 386, approved. The  Official  Receiver of East Godavari  v.  Chava  Govinda Raju,  I.L.R. [1940] Mad. 953 and Behari Lal v. Sundar  Das. I.L.R. (1935) 16 Lab. 442, distinguished. Kumbham  Lakshmanna  v. Tangirala  Venkateswarlu,  (1948-49) L.R.  76  I.A. 202 and Seturatna-in  Aiyar  v.  Venkatachala Gounden, (1919) L.R. 47 I.A. 76, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 625 of 1960. Appeal  by special leave from the judgment and decree  dated July  17,  1958,  of the Patna High Court,  in  Appeal  from Appellate Decree No. 890 of 1954. 21 B, C. Misra, for the appellants. R.   V.  S.  Mani, E.  C. Agarwala and P. C.  Agarwala,  for respondents Nos. 1. (a) to 1 (k) and 1 (m) to 1 (r). The Judgment of the Court was delivered by Sikri  J. One Mohd. Mir Khan brought a suit in the Court  of the  Munsif  Aurangabad against a number of  persons  for  a declaration  that  8  bighas of land  under  khata  No.  22, situate  at  Mauza Gopalpur, Dist.   Gaya,  constituted  the bakasht   interest  of  the  plaintiff,  who  had  been   in possession  and  occupation thereof, and he  prayed  in  the alternative  "that  if  in  the opinion  of  the  Court  the plaintiff be deemed to have been dispossessed from the  suit land  under S. 144 (Cr.  P.C.), in that case, the  plaintiff may be put in sir possession thereof on dispossession of the defendants  and 3 decree for future mesne profits  from  the date of dispossession till the date of realisation, may also be  passed  in favour of the plaintiff." He alleged  in  the plaint that the said sir land had been in sir possession  of the plaintiff and 9.81 acres (including the said 8 bighas is recorded  in the Record of Rights, i.e., Survey Khaitan,  as the bakasht land of. the plaintiff.  He further alleged that he had sown seeds in two bighas in the month of Asadh  1353, when  defendant, 2, 3 and 5 interfered with his  possession. Proceeding%  under  s. 144, Cr.  P.C.,  were  started  which resulted  in  a decision against him, He asserted  that  the defence  of the above defendants in s. 144 proceedings  that plots  Nos.  587, 832 and 846 and portion of  881  had  been settled by him and that they were in possession, was  false. He further stated that after the s. 144 proceedings he  grew rabbi crop in the suit land after cultivating the same  with his  own plough and bullock and was still in possession  but since a cloud had been cast over the title of the  plaintiff due to the decision in s. 144 proceedings, the plaintiff was entitled  to  get  his title to possession  over  suit  land confirmed by court. It  is  apparent from the above recital that except  in  the relief  clause, the plaintiff asserted that he had  been  in possession and continued to be in possession and that he had title to the land.  It was in the alternative that he prayed for  possession  if  the plaintiff be deemed  to  have  been dispossessed. The  defendants in their written statement did not deny  the title  of the plaintiff to the suit land but  asserted  that "the  plaintiff being the only member in his house  used  to remain outside in some service and consequently he gave  the



entire area of the lands in khata No. 22 to these defendants to cultivate them on batai over more than 25 years ago,  and since then the defendants have been 22 and are in peaceful cultivating possession over the same and have  also acquired occupancy rights in them." They  further alleged  they  have  been dividing crops  regularly  to  the plaintiff  but  the plaintiff never granted any  receipt  to them. The Munsif held that the plaintiff settled these lands  with the  defendants  some  28 years ago.   On  the  question  of possession  he  held  that ever since  the  settlement,  the defendants  have  been  in possession  and  cultivating  the lands, and that the plaintiff since after the settlement has not  been  in possession.  He concluded that  the  plaintiff having been out of possession for more than 12 years was not entitled  to possession.  He, in consequence, dismissed  the suit  with  costs.   The plaintiff  appealed  and  succeeded before the Appellate Court.  The Additional Sub-Judge was of the view that "the onus was on the defendants to prove  that they  were raiyats of the lands and that they  had  acquired occupancy rights in these lands and unless they succeeded in proving  these,  they  could  not  successfully  resist  the plaintiff’s suit." After going through the evidence, he came to  the conclusion that the defendants bad not been able  to prove their case about settlement and possession. Five  defendants  appealed  to  the  High  Court.   It   was contended before the High Court on behalf of the  defendants that  the  Appellate Court had wrongly put the onus  on  the defendants,  but  the  High Court, relying  on  Jaldhari  v. Rajendra  Singh(1) did not accede to this  contention.   The High  Court  held that the title of the plaintiff  had  been admitted by the defendants and their case of settlement  and possession  for 12 years had been rejected by the  Appellate Court.   The  plaintiff had never alleged that he  had  been dispossessed.    The  learned  Judge  further  observed   as follows:               "As the defendants never got possession  since               the case of the defendants, have been rejected               and the plaintiff having never alleged that he               has  been dispossessed, it is clear that  once               title has been admitted by the defendants,  on               the pleadings it follows that the landlord  is               in  possession  and  if  the  landlord  is  in               possession, on the pleadings of the parties               in  the present case there can be no  question               of coming to a formal finding of fact that the               plaintiff  was  in possession because  on  the               pleadings the plaintiff never claimed that  he               had  been  ejected  or  dispossessed  and  the               defendants  never asserted that they  forcibly               ejected the plaintiff." In conclusion, the learned Judge held that having regard  to the  facts  and circumstances of this particular  case,  the burden was on (1)  A.I.R. 1958 Pat. 386.                              23 the defendants to show whether they have been in  possession for  12  years  or more.  In the  result  he  dismissed  the appeal.   The  defendants. having obtained leave  from  this Court, the appeal is now before us for disposal. It has been argued on behalf of the appellants that the Full Bench  judgment relied on by the learned Judge  was  wrongly decided and that on the facts of this case, Art. 142 and not Art. 144 governed the case.  We are of the opinion that  the



Full Bench was correctly decided and that Art. 1.44  applied to the facts of this case. The  learned  counsel  for the appellant urged  that  in  an action  in ejectment, one of the things that  the  plaintiff must  prove is his title to immediate possession.   This  is true  and  there is no dispute about this  proposition.   He further  urges  that  where the  plaintiff  does  not  admit tenancy,  although  the defendant alleges tenancy,  he  must show  possession within 12 years of the suit.  He says  that the defendants have admitted title of the plaintiff but  not possession.  To support his proposition, the learned counsel for  the appellant, apart from Patna cases which  have  been overruled by the Full Bench, relied on The Official Receiver of East Godavari v. Chava Govinda Raju(1) and Behari Lal  v. Sundar Das.(2) ’In the former case, an auction purchaser was obstructed  by a person who claimed it as his own  ancestral property.   The auction purchaser sued for  declaration  and injunction. the facts are quite different and in none of the cases discussed by the learned Chief Justice in his judgment a  defendant had claimed possession under the plaintiff  but had asserted right by adverse possession. In Behari Lal v. Sundar Das (2 ) the facts as stated in  the head note were these:               "The   plaintiffs   instituted  a   suit   for               possession  of a house against N.B. and  N.D.,               alleging  that  in 1927 they  had  rented  the               house  to  N.B.,  who had  sublet  it  to  the               defendant  N.D. The plaintiffs stated  in  the               plaint that they were the owners of the  house               and that they had instituted a suit previously               for   recovery  of  rent  against   both   the               defendants,  but  N.D. had  asserted  his  own               title  to the property and the suit  had  been               dismissed  against him, but bid  been  decreed               against N.B." The  High  Court field that the plaintiffs  clearly  pleaded possession and dispossession, i.e., possession through their tenant  N.B.  and dispossession by the  latter’s  sub-tenant N.D., when he set up a (1) I.L.R. 1940 Mad. 953. (2)  I.L.R. (1935) 16 Lah 442. 24 title  of his own.  This case is again  distinguishable  for the subtenant had clearly asserted his own title and  denied that of the plaintiff. Another case cited by the learned counsel for the  appellant is  Kumbham Lakshmanna v. Tangirala Venkateshwarlu,  (1)  in which  the  Privy  Council  reviewed  most  of  its  earlier decisions on this branch of the law.  In this case, a holder of a minor inam sued to eject the tenants from the  holding, and  the  Privy  Council held that the  burden  was  on  the plaintiff  to  -make out a right by proving that  the  grant included both the melvaram and kudivaram interests, or  that the  tenants or their predecessors were let into  possession by  the inamdar under a terminable lease.  One of the  cases referred to is Seturatnam Aiyar v. Venkatachala  Gounden,(2) and  with reference to it the board observed at p.  224,  as follows               "In  the above case it was either admitted  or               found as a fact that the tenants had been  let               into  possession by the landlord who  was  the               absolute owner.  When the tenant claims rights               of  occupancy  in  such  circumstances   their               Lordships,   in   Nainapillai   Marakayar   v.               Romanathan   Chettiar,  (3)  laid   down   the



             principle  that the burden will be on  him  to               prove that he has such rights." Is the position the same when the plaintiff does -not  admit any  tenancy  but  the defendant alleges tenancy  but  of  a permanent  nature ? It seems to us that if a  defendant  not only  admits title of the plaintiff but also admits that  he derived possession from the, plaintiff as a tenant, the case must proceed on the defendant’s plea. and for the purpose of deciding  whether Art. 142 or Art. 144 applied, it  must  be assumed that the plaintiff has not been dispossessed or  has not  discontinued his possession within the meaning of  Art. 142,  for  neither the plaintiff nor the  defendant  alleges dispossession or discontinuation of possession. Construing  the  plaint  as a whole, it is  clear  that  the plaintiff  never  alleged  dispossession  or  being  out  of possession.   He  asserted ownership of the  suit  land  and claimed  that he was in possession.  Section 144  Cr.   P.C. proceedings seemed to have cast a doubt on his title and  he accordingly  brought a suit for a declaration.  It  is  true that  in  the  alternative  he  prayed  for  a  decree   for possession  and mesne profits.  He was careful even in  this alternative prayer to say that he could only be deemed to he dispossed  by  s. 144 proceedings.  The defendants  did  not deny  the  title  of  the plaintiff to  the  suit  land  but asserted that they had been settled and acquired (1) (1948-49) L.R. 76 I.A. 202. (2) (1919) L.R. 47 I.A. 76. (3)  L.R. 51 I.A. 83. 25 occupancy rights.  On these facts it seems to us that it was Art. 144 and not Art. 142 that applied. In  the result, agreeing with the High Court, we  hold  that the suit was not barred.  Accordingly, the appeal fails  and is dismissed, but as there is no finding by the courts below that  the  plaintiff is in possession, the  decree  will  be modified and limited lo a decree for possession of the  land in dispute. In the circumstances of the case the parties will bear their own costs in this Court. In view of our decision on the question of limitation, it is not  necessary  to deal with the point of abatement  of  the appeal raised by the learned counsel for the respondents. The  appellants wilt pay court fees, which would  have  been paid  by them if they have not been permitted to  appeal  as paupers. Appeal dismissed and decree modified. 26