Case: Musammat Murti Dussadhin And Others Vs. Surajdeo Singh And Others

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 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.6. 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. 144 applied to the facts of this case.7. 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, ILR (1940) Mad 953 : (AIR 1940 Mad 798 FB) and Behari Lal v. Sundar Das, ILR 16 Lah 443: (AIR 1935 Lah 475 FB). In the Madras 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.8. In ILR 16 Lah 443 : (AIR 1935 Lah 475 FB) the fact as stated in the headnote 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 had been decreed against N.B."The High Court held that the plaintiffs clearly pleaded possession and dispossession i.e., possession through their tenant N.B. and dispossession by the latters sub-tenant N.D., when he set up a title of his own. This case is again distinguishable for the sub-tenant had clearly asserted his own title and denied that of the plaintiff.9. Another case cited by the learned counsel for the appellant is Lakshmanna v. Venkateshwarlu, 76 Ind App 202 : (AIR 1949 PC 278 ), 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 Gounder, 47 Ind app 76 : (AIR 1920 PC 67), and with reference to it the Board observed at p. 224 (of Ind App) : (at pp. 286-287 of AIR), 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. Ramanathan Chettiar, (AIR 1924 PC 65 ), 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 defendants plea, and for the purpose of deciding whether Article 142 or Article 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.10. 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, Cri. 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 be dispossessed 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 occupancy rights. On these facts it seems to us that it is Art. 144 and not Art, 142 that applied.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 defendants plea, and for the purpose of deciding whether Article 142 or Article 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.10. 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, Cri. 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 be dispossessed 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 occupancy rights. On these facts it seems to us that it is Art. 144 and not Art, 142 that applied.