FIRST APPEAL No.456 OF 2000 Against the Judgment and decree dated 12.7.2000 passed by Sri Arun Kumar Rai, the learned 11th Subordinate Judge, Patna, in Title Suit No.535of 1995. RAM KUMAR SINHA------------Plaintiff-Appellant. Versus MOST.CHHATHIYA DEVI & ORS--Defendant-Respondents. For the appellant :Sri Shashi Shekhar Dwivedi,Sr.Advocate. Sri Pandit Ji Pandey, Advocate. For the respondents:Sri V.Nath,Sri Ashok Kumar and Sri Vishwanath Choudhary,Advocates. Dated 20th August,2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T Mungeshwar Sahoo, J. The plaintiff has filed this first appeal against the Judgment dated 12.7.2000 and the decree following thereupon signed on 19.7.2000 by Sri Arun Kumar Rai, the learned Sub Judge-XIth, Patna in Title Suit No.535 of 1995 dismissing the plaintiff- appellant’s suit for declaration of title and recovery of possession. 2. The plaintiff filed the aforesaid Title Suit No.535/95 for declaration of title and recovery of possession alleging that the property described in Schedule-I comprised within Khata No.231 belonged to Raktu Mahto. In that Khata Plot No.59 measures 80 decimals. The said land of Plot No.59 measuring 80 decimal has been described in Schedule –II to the 2 plaint. It is stated that Raktu Mahto was the raiyat of the Khata No.231. One Jhau Gope was under raiyat ( sikmidar) of Khata No.231 and a Sikmi Khata was opened in the name of Jhau Gope being Sikmi Khata No.27. 3. The further case is that just after cadastral survey (1906-11) Raktu Mahto the raiyat took possession of the lands of Khata No.231 mentioned in Schedule- I of the plaint from Jhau Gope and Jhau Gope surrendered the original sikmi khata by handing over the same to Raktu Mahto and since then Raktu Mahto continued in possession of the land of Khata No.231. After the death of Raktu Mahto his widow Ram Pyari Kuar came in possession of the entire land of Katha 231. Since Raktu and Ram Pyari had no issue, Ram Pyari Kuar gifted all her property to her Bhabhi Mahajan Kuar including the Schedule-I land through registered deed of gift dated 10.5.1963. Since the date of gift Mahajan Kuar came in possession of the entire property including the land of Khata No.231 detailed in Schedul-I to the plaint. The plaintiff –appellant is the son of Mahajan Kuar. Mahajan Kuar applied for mutation and in Case No.1330 of 1965 -66 her name was mutated and Mahajan Kuar started giving rent against the grant of rent receipt. 4. The further case is that Mahajan Kuar exercised all sorts of title and possession on the properties gifted to her and out of Schedule-I land she sold the land of Plot No.5 measuring 18 decimals to different persons and the purchasers came in 3 possession and are residing there after constructing house. Mahajan Kuar also sold 1½ katha land of Plot No.59 to Shakuntala Kumari and 3 kathas land of Plot No.59 to Shakuntala Devi and the purchasers are residing there after constructing house. She also continued in possession of the rest land measuring 66½ decimal of Plot No.59. 5. The further case is that Jhau Gope had one son, namely, Ganga Bishun and two daughters, namely, Chhathiya and Budhiya. Subhash Rai, the defendant is the son of Chhathiya. Budhiya was married to Sita Ram and they had two sons, namely, Rajendra and Vijendra who are also defendants second set. The husband of Chhathiya, namely, Bhuletan Rai died. Chhathiya and her son Subhash Rai are defendants first set respondents. Both Chhathiya and Budhiya surreptitiously got their name mutated regarding 80 decimal of Plat No.59 in Mutation Case No.261/3 of 1992-93 without the knowledge of Mahajan Kuar. On appeal the mutation was set aside. In that Mutation case the defendants falsely claimed that Jhau Gope was in possession over Plot No.59 till his death in 1940 and after his death his son Ganga Bishun came in possession and they were paying rent to the owner Raktu Mahto. On the death of Ganga Bishun Chhathiya and Budhiya came in possession of Plot No.59 and started paying rrent to the owner. Mahajan Kuar died. The defendants then started disturbing possession of the plaintiff, as such report was made with regard to only 66 ½ decimal of Plot 4 No.59 desccribed in Schedule-III. The concerned Officer-in- Charge was of same caste of the defendants and he came in collusion with them, so, the plaintiff filed the suit initially for declaration of title and confirmation of possession. Subsequently, amendment application was filed stating that in November, 1997 the defendants have completely dispossessed the plaintiff and, therefore, prayed for recovery of possession. 6. The defendants on being noticed appeared and filed a contesting written statement. In the written statement besides taking various legal pleas mainly contended that they have acquired title by adverse possession. According to their case the Plot No.59 belonged to Raktu Mahto and Jhau Gope was in possession of the same as Sikmidar. He was paying rent to the owner Raktu Mahto. On his death in 1940 his son came in possession and started paying rent to the land owner. In 1056 after vesting of Zamindari Ganga Bishun went to pay yearly rent to the land owner in April,1956 then, the raiyat did not accept rent and threatened him to dispossess but thereafter also Ganga Bishun continued in possession exercising hostile title and acquired title by adverse possession. He remained in possession till his death in 1988 and after his death the defendants are coming in possession as owner. They have constructed a jhopri (hut), a Tulsi Chaura. 7. The further defence is that Raktu Mahto never took possession of Schedule-I land from Jhau Gope nor he gave the 5 sikmi khata to Raktu Mahto. According to them the sikmi khata was lost.The gift deed is illegal and Mahajan Kuar never came in possession and she has been wrongly mutated. In fact, ancestors of these defendants had taken money from different persons and had given possession to them on the land of Plot No.5. Jhau Gope in 1939 fell ill, so, he took money from Yogendra Singh and Ram Kishore Sinha and he gave some land of Plot No.59 to them. Now, the plaintiffs have created the sale deeds in the names of Shakuntala Devi and Shakuntala Kumari for the purpose of evidence only. 8. On the basis of the above pleadings of the parties the learned trial court framed eight issues:- (ka) Is the suit maintainable in its present form ? (kha) Whether the plaintiff has got cause of action for the suit ? (ga) Whether the suit is barred by law of limitation and adverse possession ? (gha) Whether Raktu Mahto had taken possession of Schedule-I land from Jhau Gope ? (unga) Whether Jhau Gope and his descendants are in continuous possession as sikmidar on disputed land ? (cha) Whether the plaintiff has got title and interest on the said disputed land ? 6 (chha) Whether the defendants dispossessed the plaintiff in November,1997 ? (ja) Whether the plaintiff is entitled for the decree as prayed ? 9. After trial the learned court below while deciding Issues No.(gha) and (unga) came to the finding that the defendants-respondents are in possession and, therefore, it will be deemed that they were never dispossessed. So, they have acquired interest as sikmidar on the disputed land, although the plaintiff is the owner of the land but his right is limited. While deciding Issue No.(cha) the learned court below held that the plaintiff has title as owner of the land and, therefore, is entitled to only rent till the sikmidar acquires title and became raiyat himself. The learned court below rejected the case of adverse possession claimed by the defendants- respondents. On these findings the plaintiff’s suit was dismissed. 10. It may be mentioned here that the defendants have filed a cross objection under Order 41 rule 22 C.P.C. against the finding that the defendants did not acquire title by adverse possession. The said cross objection has also been admitted and is heard along with this first appeal. 11. Mr. Dwivedi, the learned Senior counsel appearing for the plaintiff- appellant submitted that the learned court below has approached the case in wrong angle and dismissed the plaintiff’s suit, although the learned court below 7 found that the plaintiff is the owner of the suit property. The learned counsel further submitted that the defendants never claimed to be in possession as under raiyat rather their claim is based on acquisition of title by adverse possession which has been disbelieved by the learned court below and in such circumstances the learned court below should have decreed the plaintiff’s suit because the suit was for declaration of title and recovery of possession. The learned court below declared the title of the plaintiff but also gave a finding that the defendants are in possession as under raiyat which was never the case of the defendants. It was not the case of the plaintiff also. Therefore, the learned court below has made out a third case neither pleaded by the plaintiff nor by the defendants. He further submitted that the learned court below has misread the evidences oral as well as documentary and disbelieved the plaintiff’s evidences on unreasonable and untenable grounds. On this submission the learned counsel submitted that the impugned Judgment and decree are liable to be set aside. 12. Mr.V. Nath, the learned counsel appearing on behalf of the respondents submitted that the learned court below should have accepted the case of the defendants –respondents that they have acquired title by adverse possession. The learned counsel further submitted that the defendants’ claim was never as sikmidar rather as owner thereof acquired by adverse possession. It may be mentioned here that this ground has also 8 specifically been taken in Ground No.VII of the cross objection. The learned counsel next submitted that since the claim of the defendants is that they have acquired title by adverse possession, the finding of the court below that the defendants are sikmidar is illegal and liable to be set aside. This ground has been taken in paragraph IX of the cross objection. 13. In view of the above submissions of the learned counsels it appears that the defendants-respondents are also accepting that the finding of the learned court below to the effect that the defendants are sikmidar is wrong. The defendants pleaded in the written statement and adduced evidences and also filed cross objection and at the time of argument also claimed title by adverse possession. On the other hand, the plaintiff’s case is simple for declaration of title and recovery of possession. The title of the plaintiff has been declared by the court below. 14. In view of the above facts the question arises for consideration in this appeal are :- (i) Whether the plaintiff has got title to the suit Property and is entitled for recovery of pos- session ? (ii) Whether the defendants have acquired title by adverse possession? F I N D I N G S 15. Since both the questions are interlinked. They are decided together. The cross objection filed by the defendants is 9 only on the point that they have acquired title by adverse possession. It may be mentioned here that a party who claims adverse possession presupposes that he admits title of the other because he cannot claim title and also claim adverse possession simultaneously. In other words the defendants are not challenging the title of the plaintiff. Their defence is as has been argued and pleaded in the cross objection that they have acquired title by adverse possession. Now, therefore, the title of the plaintiff stands admitted. It is admitted case that the defendants are not claiming possession as under raiyat. This is not the case of the plaintiff-appellant also that the defendants are in possession as under raiyat. But the learned court below has given a finding that the defendants are in possession as under raiyat. In my opinion, the learned court below has created a third case which was neither claimed by the plaintiff nor claimed by the defendants. It may be mentioned here that the court is required to investigate the case and to find out as to whose case, i.e., the case of the plaintiff or the case of the defendants is correct. The court cannot make a third case of its own without there being any basis. 16. The plaitntiff’s case is that Raktu Mahto was the owner. Jhau Gope was recorded as sikmidar with regard to Schedule-I land. Schedule-I contains three plots. Plot No.59 measuring 80 decimal, Plot No.5 measuring 18 decimal and Plot No.343 measuring 23 decimal total being 1 acre 21 decimals. 10 According to the plaintiff Jhau Gope was under raiyat with respect to all the three plots and Sikmi khata No.27 was done in the name of Jhau Gope. Just after cadastral survey Raktu Mahto took possession of the entire land of Khata No,.231 from Jhau Gope. On his death his widow Ram Pyari came in possession and gifted the land of Khata No.231 along with other land to mother of the plaintiff in 1963. Thereafter the mother of the plaintiff was exercising possession as owner thereof. To prove these facts the plaintiffs have adduced oral as well as documentary evidence. 17. P.W.1 is the plaintiff himself. He has fully supported the case as pleaded in the plaint. P.W.2 Saryug Rai alias Doma Rai has also stated the same thing. It may be mentioned here that P.Ws.1 and 2 both have stated that Mahajan Kuar had sold 1½ acre and 3 kathas to Shakuntala Devi, wife of Yogendra Prasad and Shakuntala Kumari, wife of Raj Kishore Singh. They have also stated that after purchase they constructed house and are residing there. The other witnesses, P.W.3 Shiv Sharan Singh, P.W.4 Narsingh Rai, P.W.5 Krishna Rai, P.W.6 Nageshwar Kuar, P.W.7 Ram Bharosa Rai have all stated about the possession of Ram Pyari and then Mahajan Kuar and the possession of the plaintiff. They have also stated about dispossession of the plaintiff in 1997. P.W.9 has also stated that he was cultivating the land of Ram Pyari Kuar. He has also stated the possession of the plaintiff and dispossession of the 11 plaintiff in 1997. 18. It may be mentioned here that the case of the plaintiff is that Jhau Gope was sikmidar with respect to the three plots of Khata No.231. The defendants are not claiming possession over other plots and also they are not claiming possession over the 80 decimal of Plot No.59. They are claiming title only on 66 1/2 decimal by adverse possession. So far possession of Plot No.5 and rest land of Plot No.59 are concerned the defendants’ case is that Jhau Gope had taken money from different persons and he had put them in possession of the said lands. So far as the portion of Plot No.59 is concerned, i.e. regarding 4 ½ katha is concered their case is that in 1939 Jhau Gope fell ill. So, he gave possession of the said 4½ katha land to Ram Kishore Singh and Yogendra Singh and took money. On the contrary, according to the plaintiff, Mahajan Kuar sold the land to Shakuntala Devi and Shakuntala Kumari, It is well known that under raiyati right is neither transferable nor heritable. In such circumstances the said Jhau Gope would not have given possession of the land as pleaded by the defendants. Moreover, had the transferee from Jhau Gope came in possession in 1939 they again would not have purchased the said land again by Ext. 14 series in 1987-88 and 1990 by paying huge amount. 19. The learned counsel for the respondents submitted that these sale deeds are showy and same holding has 12 been sold in all these sale deeds and the learned court below, therefore, disbelieved the sale deeds. From perusal of the impugned Judgment it appears that the learned court below disbelieved these sale deeds on the ground that the same holding has been sold and that the witnesses have stated that the land was sold whereas in the deed lands and house were sold. The learned court below, therefore, found that the sale deeds are showy sale deed. It may be mentioned here that the defendants have in the pleading admitted the fact that in 1939 possession was delivered by Jhau Gope to Ram Kishore Singh and Yogendra Singh. It is not the case that the sale deeds are showy sale deeds. It is admitted fact that the purchasers are residing after constructing house. According to the plaintiff they sold the property through registered sale deed, Ext.14 series whereas according to the defendants Jhau Gope has sold the property after taking money in 1939 in the name of the husband of the purchaser of Ext.14 series, i.e., Yogendra Singh and Ram Kishore are the husbands of Shakuntala Devi and Shakuntala Kumari. In the evidence also it is admitted by D.Ws.1 and D.W.2 that the purchasers are in possession after constructing house. In view of the above admitted fact the learned court below has made out a third case by finding that the purchasers’ possession is not referable to Ext.14 series and, therefore, the reasoning of the learned court below that the sale deeds are showy is not sound nor tenable and it was not the case of any party. 13 20. So far Plot No.5 is concerned, also it is the case of the plaintiff that Mahajan Kuar has sold the land of Plot No.5 by Exts. 14/D, 14/E and 14/F in 1979- 1984. The explanation given by the defendants with regard to this land is concerned also in the same line that the ancestors had given the lands to the said persons after taking money. Jhau Gope died in 1940.Had the purchasers constructed house on the basis of purchase made by them from Jhau Gope they would not have paid the huge money again to Mahajan Kuar because the value of the land purchased prior to 1940 was much less than its value in 1979 or 1984. It is acceptable that the purchasers would have paid such huge amount to the vender Mahajan Kuar. Therefore, the explanation given by the defendants are not acceptable because it is neither based on any evidence nor it is reliable rather it is merely a defence for the sake of defence which cannot be relied upon. 21. The plaintiff has also filed Ext.3 series which are rent receipts, Ext.6 series which are the rent receipts granted by ex-land in the name of Rampyari Kuer from the year 1945 to 1954. Ext. 8 series are Irrigation Tax receipts. All these evidences clearly support the possession of the plaintiff. 22. On the contrary, the defendants are claiming title on the basis of adverse possession over 66 ½ decimal only. So far 14 rest land of Khata No.231 is concerned there is no evidence at all in support of their claim that Jhau Gope or his son or the present defendants were in possession. 23. In view of the above facts, now let us examine the claim of adverse possession of the defendants. As stated above since the defendants are claiming title by adverse possession they admit the title of the plaintiff. During course of argument also the learned counsel Mr. V. Nath submitted that they admit the title of Raktu Mahto but according to them because they exercised hostile possession they have acquired title by adverse possession. The learned counsel relied upon a decision reported in AIR 1960 Patna Full Bench 344; Basta- colla Colliery Comp. Ltd. Vs. Bandhu Beldar and another and submitted that the possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease. The learned counsel applying this decision in the present case submitted that in April,1956 when the defendants paid the rent and the plaintiff/plaintiff’s ancestors refused to accept the rent the possession of the defendants became wrongful and since then the defendants started prescribing title by adverse possession. It may be mentioned here that so far this decision is concerned it was governed by the old Limitation Act and, moreover, in that case the lessee came in possession under a void lease. The Limitation Act has been amended in 1963 and the present suit has been filed under Article 65 of the Limitation Act.In a recent 15 decision the Hon’ble apex Court in the case of C. Natrajan vs. Ashim Bai and anr. Reported in 2007 (14) S.C.C. 183 at paragraphs 16, 17 and 18 as follows:- “16. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limi- tation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plainti- ff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession.” “17. Mohd. Mohammad Ali v. Jagadish Kalita (14 (2004) 1 SCC 271) it was held: (SCC p.277, para 20) “20. …By reason of the Limitation Act, 1963 the legal position as was obtain- ing under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if 16 he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in posses- sion within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff‟s claim to establish his title by adverse possession.” (See also P.T. Munichikkanna Reddy v. Revamma ( 15 (2007) 6 SCC 59) , Binapani Paul v. Pratima Ghosh ( 16 (2007) 6 SCC 100 ), Kamakshi Builders v. Ambedkar Educational Society (17 (2007) 12 SCC 27: AIR 2007 SC 2191) and Bakhtiyar Hussain v. Hafiz Khan ( 18(2007) 12 SCC 420)” “18. In S.M.Karim( 13 AIR 1964 SC 1254:(1964) 6 SCR 780) this Court was considering a quest- ion of benami as also adverse possession. In the aforementioned context, it was opined: (AIR p. 1256, para 5) “5. … Adverse possession must be adequ- Ate in continuity, in publicity and extent and A plea is required at the least to show when Possession becomes adverse so that the start- ing point of limitation against the party affect- 17 ted can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for „several 12 years‟ or that the plaintiff had acquired „an absolute title‟ was not enough to raise such a plea. Long possession is not nece- ssarily adverse possession and the prayer cla- use is not a substitute for a plea. The cited cases need hardly be considered because each case must be determined upon the alle- gations in the plaint in that case. It is sufficie- nt to point out that in Bishan Dayal v. Kesho Prasad ( 19 AIR 1940 PC 202) the Judicial Committee did not accept an alternative case based on possession after purchase without a Proper plea.” (See also Prem Lala Nahata v. Chandi Prasad Sikaria ( 20 ( 2007) 2 SCC 551). Such a question does not arise for our consideration herein”. 24. In view of the above settled principles of law, in my opinion, the decisions cited by the counsel for the respondents is not applicable. Their Lordships of the Apex