Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL HAKIM SIKDAR VS Respondent: TOMEJADDY RARI, (DECEASED) THROUGH HEIRS
P L D 1952 Dacca 337
P L D 1952 Dacca 337
Before Akbar and Guha, JJ
ABDUL HAKIM SIKDAR and others‑Appellants
Versus
TOMEJADDY RARI, (deceased) through heirs Respondents
Appeal from Appellate Decree No. 271 of 1944, decided on 6th August 1951, against the decree of S. C. Roy Choudhury, Additional judge, 4th Court of Zilla Bakarganj, at Barisal, dated the 21st September 1943, in Title Appeal No. 33 of 1943, reversing the decree of Bishnu Nath Sen, Subordinate Judge, 1st Court of Barisal, dated the 23rd December 1942.
(a) Adverse possession‑Owner must be entitled to im mediate possession.
Possession cannot become adverse to the owner so long as he is not entitled to claim immediate possession.
Where the defendant was not entitled to claim possession before the partition was confirmed the plaintiffs' possession could not be adverse against him.
The well‑known maxim "contra non valentem agere non currit praescription", means that' prescription does not run against a person during the time when he is not entitled to immediate possession.
The rule that an agricultural tenant who enters upon the land, whether. it be firm or alluvial and holds under a de facto proprietor bona fide, is entitled to retain possession as a raiya' although the de facto proprietor is subsequently proved to be not the real owner, must be cautiously applied.
Bejoy Chunder Banerjee v. Kally Prosonno Mookherjee I L R 4 Cal. 327 ref.
To make the above principle, applicable, there must be bona fide belief of the lessor and the lessee that the former had sole interest in the land to create the interest and the latter also believed that he obtained a valid right available against the sole real owner.
(b) Estates Partition Act (V of 1897), S. 99‑Occupancy rights created by one co‑sharer not binding upon other CO‑sharers.
A co‑sharer cannot create by letting lands to cultivators as his tenants any occupancy m5lit to the lands, as against his other co‑sharers.
No occupancy right acquired by a tenant against one co sharers can be binding against the other‑co‑sharers.
[Case‑law discussed.]
A. K. Fazul Huq, Advocate‑General, M. Asir and K. Hossain for Appellants.
B. C. Das for Respondent No. 6.
Syed Modaris Ali for Deputy Registrar.
JUDGMENT
GUHA, J.---‑This second appeal by the plaintiffs arises out of a. suit for declaration of plaintiffs Korsha right in Schcdules Kha and Ga lands as reformation and accretions to their occupancy holding in Schedule Kha land and for con firmation of their possession in the suit lands (Schedules Kha and Ga lands) and also for restraining the defendants Nos. I to 13 permanently by an injunction from interfering with the plaintiffs' possession therein and the suit has been decreed in full in the trial Court by the learned Subordinate Judge, First Court, Barisal but the said decision has been reversed by the learned Additional District Judge, Fourth Court, Bakarganj.
The facts of the case lie within a short compass as hereunder.
The suit lands described in Schedules Kha and Ga attached to the plaint appertain to Mouaza Gouripur within zamindary Touzi No. 1983 of the Bakarganj Collectorate and under the said Touzi, a Howla known as Rampriya Choudhurani was created by one‑third share of the zarnindary. It may be noted here that before as there is no document for ascertaining the origin and extent of that Howla. The said Rampriya Howla was auction‑purchased by a fractional co‑sharer of the zamindary, namely, Beharilal Roy Choudhury. Then on the 16th August 1878, the said Beharilal Roy Choudhury granted raiyati settlement to one Muhammad Sikdar, predecessor of some of the plaintiffs, for self and his brother Ibrahim Sardar predecessor‑in‑interest of other plaintiffs in respect of 2 Kanis or about 4'40 acres of land at an annual rent of Rs. 10 and there were exchange of Patta and Kabuliyat for such settlement and the western boundary of the said holding was the river Nayabhangani ; but in course of time the said river shifted its course towards the east and engulfed a considerable portion of the said holding and in consequence during the District Settlement operations in 1904‑05 there remained only about one‑fourth Kani or : 44 acres of land of the said holding and the rest was diluviated and the holding was so recorded in the record of rights in Dags Nos. 1 and 13 in Khatian No. 5 under Howla Rampriya in Khebat No. 33 and a reduced Jama of 12 annas was recorded for the undiluviated portion. The diluviated lands began to reappear in 1910‑11 and in 1914, according to the plaintiffs, the entire diluviated lands emerged out of water and there was accretion also and the total area became about 14'05 acres. Beharilal Roy Choudhury died leaving 3 sons, Surendra, Susil and Jatindra and a Will and Surendra took probate of the said Will as executor and then settled the reformed and accreted lands measuring 14'05 acres with some of the plaintiffs at Rs.32‑8‑0 per annum in 1917 according to tile rate of the Patta at Rs. 4 per Kani. Subsequently, 10'32 acres of land described in Schedule Ga accreted. On partition between the sons of Beharilal in Partition Suit No. 182 of 1925, the Howla Rampriya fell to the share of proforma defendant No. 14 Susil. By gift, dated the 13th November 1938, Susil made a gift of the Howla Rampriya to his wife Shudhan shumala and Shudhanshumala took a Korsha Kabuliyat from the plaintiffs Nos. 1, 2, 10 and 11 for the Schedule Ga lands measuring 10'32 acres accreted to Schedule Kha lands to the west reserving an annual rent, of Rs. 24. Shudhanshumala died subsequently leaving her husband Susil as her heir. It is alleged that the plaintiffs possessed the lands of Schedules Kha and Ga, which are the subject‑matter of the suit. There is no dispute about 44 acres recorded in Khatian No. 5 and described in Schedule Kha. The plaintiffs Nos. 1 to 7 as successors‑in‑interest of Muhammad Sikdar possessed 8 annas and by devolution of interest and transfer the plaintiffs Nos. 8 to 11 owned and possessed Ibrahim Sardar's 8 annas interest. There was a partition proceeding amongst the zamindars under the Estates Partition Act in Case No. 5 of 1917‑18 in the Collectorate and it was completed and confirmed by the Commissioner on the 11th October 1938. Schedule Ga land was not included in the said partition proceeding as it was not in existence then, as admittedly it emerged out of water in or about the year 1341 B. S. (1934 A. D.). The Kha Schedule land was then in existence and it was recorded in Butivara Dag No. 166 as measuring 13'35 acres and this was allotted to the share of the zamindar defendant No. 13 Anil Chandra Dutt Choudhury as khas land of the zamindary. When the defendant No. 13 went to take delivery of posses sion of that said land on the 13th January 1941, the plaintiffs who were found in possession of the same resisted. The plaintiffs filed objections before the Butwara Deputy Collector, who after hearing the objections reported the matter to the Collector, but the Collector refused to interfere and rejected the petition. The defendant No. 13 leased out the Kha Schedule land to the defendants Nos. I to 12 by documents and also threatened to lease out Schedule Ga land. The plaintiffs' title being clouded and they being apprehensive of being ousted from the land, instituted the suit with the prayers mentioned at the beginning of this judgment.
It is clear from what has been stated before that the plaintiffs' claim Schedule Kha land as reformation in situ of their 1878 holding and accretion thereto and tote Schedule Ga land as accretion to the Schedule Kha land. The plaintiffs in their plaint aver ; that the defendant No. 13 or defendants Nos. 1 to 12 have no title to or possession in those lands and, at any rate, the plaintiffs are entitled to own and possess the same as tenants under bona fide settlement from the successor‑in- interest of late Beharilal Roy Choudhury.
The suit has been contested by the defendants Nos. 1, 2, 3, 7, 10 and 13 by filing a written statement and by defendant No. 9 by filing a separate written statement. The defence of the first group of defendants, so far as it is material for this appeal, is (a) that the suit is barred by limitation, (b) that the disputed lands do not appertain to Howla Rampriya and are not reformation of or accretion to Howla Rampriya and neither Beharilal nor defendant No. 14 nor his co‑sharers nor the plaintiffs nor their predecessors possessed them, (c) that the disputed land of Schedule Kha reformed about 25 years ago but it remained as Khas Patit land of the Maliks of the Tauzi No. 1983, and that the defendants Nos. I to 12 being tenants of the said Tauzi guarded the grass on them and the Malik cut the grass according to necessity, (d) that on partition under the Estates Partition Act, the disputed Kha Schedule land fell to the allotment of the defendant No. 13, who took delivery of possession of the same as Khas land and settled it with defendants No. 1 to 12 on Adhi Barga, (e) that Schedule Ga land formed to the west of Schedule Kha land from the river Nayabhangani was also in possession of the defendants Nos, 1 to 12 and (f) that they denied the Korsha right of the plaintiffs in the suit land and also the Howla right of their alleged lessors in the same.
Defendant No. 9 also filed a similar written statement denying plaintiffs' right to and possession in the suit lands and contending inter alia that these lands were Khas lands of the Tauzi and did not appertain to Howla Rampriya ; that the proprietors of the Tauzi previously sold grass of‑Schedule Kha lands by public bids and took money but subsequently took half of the produce that when defendant No. 13 after taking possession wanted to make Barga settlement, the defendant No. 9 and others executed a Barga Kabuliyat in his favour and had been in possession since then and that the plaintiffs' claim to Schedule Ga land was not tenable as there was a deep Baor (water channel) between the lands of the Schedule Kha and Ga.
The learned Subordinate judge has decreed the suit declaring plaintiffs' Korsha title to the Kha and Ga Schedule lands, which were found to be reformations of and accretions to the occupancy holding of the plaintiffs in Schedule Kha and the plaintiffs' possession was confirmed therein and a perma nent injunction was issued restraining the defendants Nos. 1 to 13 from interfering with the plaintiffs' possession. On appeal by the contesting defendants the learned Additional District Judge reversed that decision and dismissed the plaintiffs' suit holding inter alia : (1) that during the district settlement proceedings the land of the original holding was washed away by the river to its west leaving. 44 acres of land for which a Jama of 12 annas was recorded ; (2) that the Kha Schedule land recorded in Dag No. 166 of the Butwara pro ceeding entirely emerged out of water in 1917‑18 and its eastern portion was reformation in situ while the western portion was accretion and in the partition proceedings, Howla Rampriya as existed at the time of the district settlement was allotted to the share of one Mr. Gupta and the Kha Schedule land was allotted to the share of defendant No. 13 as Khas land ; (3) that the Ga Schedule land subsequently emerged out of water in 1934 and was leased out to the plaintiffs by the wife of defendant No. 14 in August 1939, but there was no deep navigable channel between Schedules Kha and Ga lands as contended by the defendant No. 9 ; (4) that the original settlement with the plaintiffs' predecessors in 1878 was by Patta and Kabuliyat, which were genuine and that the plaintiffs had been in possession of the Kha and Ga Schedule lands at the date of the suit ; (5) that the plaintiffs were not entitled to claim title to the suit lands by adverse possession against the defendant No. 13 as his possession was confirmed on the 11th October 1938, and the suit was instituted on the 15th September 1941, because the raiyati holding of the plaintiffs was not under the entire zamindary within the Howla Rampriya created by the one‑third co‑sharer of the zamindary though the land were undivided joint property of all the co‑sharers of the zamindary ; (6) that as the Howla Rampriya was held by Beharilal under the one‑third co sharer zamindar only, the leases created by Beharilal or his successors‑in‑interest in favour of the plaintiffs could not be treated as bona fide leases and enforceable against the remain ing two‑third co‑sharers of the zamindary ; and (7) that as the land in dispute had been allotted to the allotment of the defendant No. 13 in proceedings under the Estates Partition Act, who was not a lessor of the plaintiffs, the plaintiffs were not entitled to enforce their Korsha right in respect of Schedules Kha and Ga lands against the defendant No. 13 and the lessees of that defendant.
Hence this appeal by the plaintiffs and it is urged by the learned Advocate‑General on their behalf ; firstly that in view of the findings and decision of the trial Court, the lower appellate Court has erred in reversing the decision on a new case ; secondly, that as regards Schedule Kha land the lower appellate Court should have held that the plaintiffs had per fected their title to it by adverse possession ; thirdly that in view of the decision in Benodelal Pakrashi's case the lower appellate Court should have held that the plaintiffs were bona fide occupancy raiyats and were not liable to be evicted but the defendant No. 13 was only entitled to get rent from them; fourthly, that the plaintiffs' Korsha right could not be ignored but should be given effect to as they were no parties to the Butwara proceedings and the defendant No. 13, though was not a lessor of the plaintiffs, was bound to respect the leases granted by his co‑sharer zamindar and admittedly as by posses sion over 12 years they have acquired a right of occupancy, they cannot be ejected by the defendant No. 13 ; and fifthly, that the plaintiffs should be allowed to withdraw their claim in respect of the Schedule Ga land. We shall examine the different contentions in the order they have been urged.
We have not been able to appreciate the first contention of the appellants that the lower appellate Court has decided the case on a new point, which has not been raised in the issues. The lower appellate Court has accepted the findings on material facts but what it has done is that it has applied the law that applies to those state of facts and in that it has decided the case reversing the decision of the trial Court. How can that be said to be a new case ? All that can be said is that the learned Additional District judge has approached the case by formulating the points of law for determination in the case which, in our opinion, are correct and then decided the appeal. He has accepted the findings of the trial Court and decided the questions of law arising therefrom correctly, and that cannot be said to be a decision on "a new point. Therefore, the first contention fails.
As regards the second contention, which has not been seriously argued, that the plaintiffs have perfected their title to Kha Schedule land by adverse possession, we are of opinion that it must also be rejected. Briefly stated, it arises in this way that from about the date of the final publication of the district settlement record of rights in 1904, the plaintiff, predecessors had a Korsha holding in respect of 44 acre of land at a rental of 12 annas described in Schedule Kha under the Howla Rampriya, which was admittedly created by the one -third co‑sharer zamindar and was under the one‑third share of the zamindary. Again the Kha Schedule lands are alleged to be reformed lands of the original Korsha holding of 1878 and also accretions thereto. The original Korsha holding com prised an area of 4'40 acres at an annual rent of Rs. 10 under the said Rampriya Howla created by the one‑third co‑sharer zamindar only under their one‑third proprietary interest. But in course of time the major portion of the said holding was washed away by the diluvial action of the river Nayabhangani and in or about the time of the final publication of the record of rights, a new holding in respect of the residuary land of the original holding measuring '44 acre at a rental of 12 annas only was created by the said one‑third co‑sharer only without any concurrence of the other proprietors ; and it is also admitted that the plaintiffs took settlement of a new holding in place of the original holding of 1878. Admittedly the Schedule Kha land comprises lands which are reformation in situ of the original holding and also accretions thereto, and measures 13'55 acres as recorded in Butwara proceeding and it is not known which portion of this land is reformation in situ and which is accretion. The plaintiffs cannot admittedly claim any portion of this land as reformation in situ of the original hold ing, because they gave up that holding after diluvion and took settlement of a new holding of '44 acre only described in Schedule Kha, which is in their possession. But the plaintiffs claim the Kha Schedule land as reformation of their original holding of 1878, which in our opinion they cannot claim and also as accretions to their present holding in Schedule Kha under Howla Rampriya. In the Butwara proceeding under the Estates Partition Act, Howla Rampriya created by one‑third co‑sharer Beharilal Roy Choudhury, has been allotted to co‑sharer zamindar Mr. Gupta and the Kha Schedule land to the co‑sharer defendant No. 13 as Khas land ; and this Butwara proceeding was completed on the 11th October 1938, when title accrued to the defendant No. 13. The plaintiffs claim that when the entire Kha Schedule land emerged out of water in 1914 they took fresh settlement from the one‑third proprietor Roys in 1917 and since then they had been in posses sion and, therefore, their title as occupancy raiyats has been perfected by adverse possession. As we have seen, the property was the joint property of all the co‑sharer proprietors. Rampriya Howla was created by Beharilal Roy and the Korsha settlement of Schedule Kha land was granted in 1917 by the executor to the estate of Beharilal Roy and so the Korsha was not under the entire zamindary, and, therefore, the defendant No. 13 was not bound by the lease created by the one‑third co‑sharer. It is well‑settled that possession cannot become adverse to the owner so long as he is not entitled to claim immediate possession. Here in this case the defendant No. 13 A was not entitled to claim possession before the partition was confirmed on the 11th October 1938, and as such the plaintiffs' B possession could not be adverse against him or his lessees till then. The classical definition of the term "adverse possession" is that given by Markby, J., in Bejoy Chunder Banerjee v. Kally Prosonno Mookherjee I L R 4 Cal. 327, where the learned Judge at page 329 observed as follows :
" By adverse possession I understand to be meant posses sion by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession. If by this adverse possession the Statute is set running, and it continues to run for twelve years then the title of the true owner is extinguished and the person in possession becomes the owner."
These words are important because the expression the well known maxim "contra non valentem agere non currit praescription", that is to say, prescription does not run against a person during the time when he is not entitled to immediate possession. See Malikarjan Mahadeo Belure v. Amrita Tukaram Dambere I L R 42 Bom. 714. Therefore, we hold that the plaintiffs cannot claim any adverse title against the defendant No. 13 as the latter had only right to claim posses sion from the 11th October 1938. So the second contention on behalf of the appellants is untenable and is rejected.
The third contention of the learned Advocate‑General is that if the plaintiffs cannot plead adverse possession, they can claim title on the basis of the principle laid down in Benodelal Pakrashi's case I L R 20 Cal. 708 (F B) where Sir Comer Petheram, C. J. in delivering the judgment of the Full Bench observed
"Provided of course, it was a right bona fide acquired by them from one whom they bona fide believed to have the right to let them into possession of the land. In my opinion, the defendants are ryots, and the only right of the person who has obtained possession of the zamindary is to the rent payable for the land and not to obtain Khas possession of the land itself, unless they can do so under the provisions of the Tenancy Act."
The question for consideration is whether this case is governed by the principle of the decision of the Full Bench, namely, that an agricultural tenant who enters upon the land, whether it be firm or alluvial Nundo v. Banomali I L R 29 Cal. 871.; and Rajendra v. Nandalal 19 C L J 595, and holds under a de facto proprietor bona fide, is entitled to retain possession as a raiyat although the de facto proprietor is subsequently I proved to be not the real owner. This principle is an encroach ment upon the ordinary rule of law that a grantor is not competent to confer upon the grantee a better title than what he himself possesses, as has been laid down in Upendra Narain v. Protap Chandra I L R 3 Cal. 703 and again it is well established that the Courts have repeatedly ruled that the doctrine must be cautiously applied and must not be extended. Thus in Kazi Nawaz Khoda v. Surendra I L R 34 Cal. 109 ; Peary Mohan v. Radhika Mohan 5 C L J 9 ; and Upendra v. Protap Chandra (Supra) ; the Court refused to apply the doctrine to cases where the landlord was not in possession in good faith. Therefore, it cannot be disputed that want of good faith either on the part of the lessor or the lessee makes the rule inapplicable. The position, therefore, is to quote the words of Sir Ashutosh Mukerjee, J., in Krishna v., Muhammad 23 C L J 563.
that in order to make the principle available it is essential that the lessor should be in possession of the disputed property as de facto landlord and that in good faith he should have inducted into the land a cultivator who 'has accepted the settlement in good faith.
It, therefore, follows that to make the principle applicable, there must be bona fide belief of the lessor and the lessee that the former had sole interest in the land to create the interest F and the latter also believed that he obtained a valid right available against the sole real owner. In the present case it was known that Beharilal Roy held the Howla Racnpriya under one‑third co‑sharer zamindar only and it could not be believed that the leases created by Beharilal or his successors‑in‑interest would be enforceable against the remaining two‑thirds share in the zamindary. Therefore, we cannot hold that the rule in Benodelal Pakrashi's case is of any avail to the plaintiffs of this case. In a case similar to the facts of this case, the principle in Benodelal's case has not been applied. See Debendranath v. Umesh Chandra 46 C W N 904. We, therefore, reject the third contention on behalf of the appellants as unsound.
The fourth contention on behalf of the plaintiff appellants is important, namely, that the defendant No. 13 is not entitled to eject the plaintiff's because they have acquired occupancy right in Kha Schedule land by virtue of the leases granted by a co‑sharer zamindar and by their possession for over 12 years and as the plaintiffs were no parties to the Butwara proceed ings, their occupancy right could not be ignored by the defendant No. 13 and the latter was not entitled to eject them but to respect the plaintiffs' occupancy right in Kha Schedule land. It is an admitted fact as has been noticed above that the plaintiffs' lessors as owners of the Howla Rampriya under one third zamindary leased out the land to the plaintiffs or their predecessors and that the plaintiffs possessed the same for over 12 years continuously the land of Schedule Kha. The only question is whether the acquisition of occupancy right is available against the defendant No. 13, to whom the Kha Schedule land has been allotted as Khas lands in Butwara proceeding under the Estates Partition Act (V of 1897 B.C.). It is an admitted fact that the leases were granted to the plaintiffs admittedly by one‑third co‑sharer proprietor under a Howla tenure thereunder in respect of one‑third co‑sharers's interest without the consent of other co‑proprietors and then on partition between proprietors of the Touzi, the disputed Kha Schedule land was allotted to the defendant No 13 as Khas land. In this case there is no evidence that one‑third co‑sharer Beharilal was in separate possession of that share with the consent of his other co‑sharers. In this case the learned Additional District judge relying upon the Butlvara proceedings under the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.