1969 PLP 547 (SCMR)

ABDUL RASHID, C. J.‑This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal decreeing the plaintiffs' claim to the extent of 15 annas, 10 gandas, 1 kara, 2 krants share in Chardah Beel, and reversing the decision of the Subordinate Judge of Sylhet dismissing the plaintiffs' suit. The material facts of the case may be shortly stated. The plaintiffs are the owners of Taluk No. 27208/2 (Taluk Subhangshu Roy), and Taluk No. 278208/3 (Taluk Gopi Saday Roy) of the Sylhet Collectorate (which will hereinafter be referred to as Taluks Nos. 2 and 3). These two Taluks include two villages, namely, Srimantapore and Sukdebpur. in the lands of which the two Taluks have equal shares. The two villages mentioned above were surveyed in 1861, in two Thak Halkas Nos. 2266 and 2267 respectively. The present suit concerns a Beel called Chardah Beel and a Khal leading to that Beel from the Boulai river. The case for the plaintiffs is that Chardah Beel and Chardah Khal form a part and parcel of their villages Srimantapore and Sukdebpur, and that they had been in possession of the Beel and the Khal by letting them out of fishermen for the last 60 or 70 years. In 1919 the zemindars of Rajapore tried to interfere with their possession of the Beel and they took proceedings under section 145 of the Cr. P. C. against the zemindars of Rajapore and their tenants. These proceedings, however, terminated in favour of the zemindars of Rajapore on the 11th February 1920. The plaintiffs had, therefore, to institute a civil suit against the Rajapore zemindars for possession and mesne profits. This suit was instituted in 1922 (Title Suit No. 97 of 1922) against the zemindars of Rajapore and their tenants. After the suit had been going on for a period of about 6 years, a compromise was arrived between the plaintiffs on the one side, and the zemindars of Rajapore on the other side on the 29th February 1928. By means of this decree, the plaintiffs' title to the Beel and the Khal was declared, as they became entitled to khas possession thereof in the month of July 1928. Thereafter the plaintiffs continued to exercise rights of ownership in respect of the Beel and the Khal by granting kabuliyats and leases to various fishermen. In July 1928, the plaintiffs had regained possession of the Beel and the Khal from the zemindars of Rajapore. In 1931 and 1932, however, the defendants began interfering with the possession of the plaintiffs. This led to criminal proceedings under section 145 of the Cr. P. C. which ended in favour of defendant No. 1, Brojendra Kishore Roy Chowdhury. The plaintiffs were, there fore, compelled to file the present suit on the 19th September 1935. According to the plaintiffs, the cause of action accrued to them on the 26th of September 1932, when an order under section 145 of the Cr. P. C. was passed in favour of the defendants. Three sets of written statements were filed by the defendants, one by defendant No. 1, another by defendants Nos. 27, 28 and 30 and the third by defendant No.

34. The last‑mentioned defendant supported the plaintiffs, while the written statements of the other two sets of defendants were practically identical. They pleaded that the Beel and the Khal were not situate in villages Srimantapore and Sukdebpur which appertained to tile plaintiffs' Taluks Nos. 2 and 3, but in Para Bhati Kalyanpore of Mouza Tahirpore of Taluk No. 7 which belonged to defendant No.

1. The principal plea taken by the contesting defendants was that the ‑plaintiff's suit was barred by time under Article 142 of the Limitation Act, as the plaintiffs had not exercised any right of ownership in respect of the Beel and the Khal within a period of 12 years prior to the institution of the suit. In order to determine the location of the Beel and the Khal a local Commissioner was appointed. After a thorough investiga tion, he came to the conclusion that the whole of the Beel except a very small portion on the south‑western corner, was within villages Srimantapore and Sukdebpur. He reported that as far as the khal was concerned it was outside the villages Srimantapore and Sukdebpur. The trial Court held that the report of the local Commissioner was correct in all important particulars. It, however, dismissed the plaintiffs' suit in respect of that portion of the Beel which it found to be in Taluks Nos. 2 and 3 on the ground that the plaintiffs had exercised no rights of ownership in respect of this Beel for a period of 12 years preceding the institution of the present suit. Before the High Court the parties did not challenge the correctness of the Commissioner's report. The only question before the High Court decision, therefore, was whether the plaintiffs' title had been extinguished by lapse of time. The Subordinate Judge began to examine the evidence of possession from the time of the Thak in 1861. This, according to the learned Judges of the High Court, was not necessary as the more important question was as to who was in possession in more recent times. It is established by the Commissioner's report that the greater part of the Beel is situate within Taluks Nos. 2 and 3, and that a very small portion is situate in the Taluks of defendant No.

1. The Thak is a valuable piece of evidence of possession in respect of the period when it was prepared. It is, therefore, clear that in 1861 the Beel in question, with the exception of a very small portion, was in possession of the plaintiffs. It has now been held that the title in the Beel also vests in the plaintiffs. These two facts must be kept in view when we begin to examine the evidence led by the parties. In view of these two facts. the onus of proving that the plaintiffs had exercised rights of ownership in respect of the Beel within 12 years of the institution of the suit would be a light one. This fact was lost sight of by the Sub-ordinate Judge and that is one reason why he looked upon the entire evidence produced by the plaintiffs oral or documentary, with an amount of suspicion, which under the circumstances of the present case, was not justified. In a case of this type oral evidence is not of much assistance, and it is clear from the record that the oral evidence produced by both parties is interested. It would not, therefore, be safe to place any great reliance on it. I would like to emphasize one other factor before examining the documentary evidence in this case. In order to defeat a title‑holder under Article 142 of the Limitation Act by dispossessing him, acts must be done by the trespassers which prevent the owner from enjoying the property for the purposes for which he intended to use it.. It is necessary to look at the position in which the former owner stands towards the property, as well as the acts done by the alleged dispossessor. What acts of the defendant are sufficient to establish the termination of the former owner's possession must be judged from the circumstances of the case and from the nature of the property in question. In the case of Basanta Kumar v. The Secretary of State (I L R 44 Cal. 858), their Lordships of the Privy Council observed as follows :‑ "Again, to apply the test suggested by Bramwell, L. J. in Leigh v. Jack, at p. 272, `to defeat a title by dispossessing the former owner, acts must be done, which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it,' and therefore it is necessary to look at the position in which the former owner stands towards the land, as well as to the acts done by the alleged dispossessor. `It iv impossible,' says Lord Halsbury in Marshall v. Taylor `to speak with exact precision about the degree of possession or dispossession that will do, unless you have regard, as Lord Justice Cotton said in Leigh v. Jack to the nature of the property'. An exclusive adverse possession for a sufficient period may be made out, in spite of occasional acts done by the former owner on the ground for a specific purpose from time to time. Conversely, acts which prima facie are acts of disposses sion may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explana tion, bear some other character or have some other object. In the present case beyond the temporary utbandi cultivation itself there is nothing down to 1892, to show an exclusion of the plaintiffs by the Revenue authorities. Their Lordships are of opinion that, whatever may have been the case later on, there had not been, down to September 1892, any dispossession of the plaintiffs within the meaning of Article 142." It is clear that in order to apply the provisions of Article 142 and 144 of the Limitation Act we must attach a great deal of importance to the nature of the property which forms the subject matter of the litigation. If the property consists of waste lands, or large areas of jungle, or big sheets of water, the onus on the plaintiffs would be a light one. If, on the other hand, the property consists of houses, shops, or cultivated lands, different considerations would be applicable. In the case of waste lands, jungles and large sheets of water, it might well be that both parties to the litigation may be exercising rights of ownership by letting out the property to, various tenants in small parcels out of big estate. We were told by Mr. Dass, who appeared on behalf of the defendant‑appellant, that the area of Chardah Beel was about 100 acres and that it is contiguous to the Taluks of the plaintiffs on the one side and to the Taluks of defendant No. 1 on the other. In these circum stances it is quite possible that both parties may be making are certain amount of money by letting out the Beel to various fishermen. If that be so, both parties would be taken to be in possession, and no question of the present suit of the plaintiffs being barred by limitation would arise. The learned Judges of the High Court have divided the period from the time of the preparation of the Thak in 1861 till the institution of the suit in 1835 into 7 periods. The first period runs from April 1855 to April 1864. With respect to this period, the plaintiffs have produced collection papers mentioning realization of money from tenants of Srimantapore on account of casting fishing nets in the Beel. The defendants have produced the Thak papers to show that a very small portion of the Beel (the south‑western portion adjoining Gauda Beel and the Khal lay within Taherpore which was owned by defendant No.

1. The second period begins from April 1864 and terminates in April 1884. With respect to this period, neither party has produced any documentary evidence. The third period runs from April 1884 to April 1893. In respect of this period the plaintiffs have produced 4 kabuliyats executed respectively in the years 1885,. 1888, 1890 and 1893 showing that Chardah Beel was let by the plaintiffs to various fisherman. The defendants have produced two kabuliyats, one executed in 1886 and the other in 1890. Some of the kabuliyats produced by the plaintiffs relate exclusively to Chardah Bee], while others include a number of other Beels also. Both the kabuliyats of defendants, however, refer to a number of Beels, Chardah Beels being one of them. When we come to the fourth period i.e. from April 1893 to April 1908, we find that the plaintiffs have produced 4 kabuliyats executed respectively in 1899, 1903, 1904 and 1908, while the defendants have produced 2 kabuliyats executed respectively in 1900 and 1905. Some of these kabuliyats executed in favour of the plaintiffs relate to the Chardah Beel and Khal only, but both the kabuliyats in favour of the defendants include a very large number of other Beels some of which are undoubtedly the property of the defendants. The fifth period extends from April 1908 to April 1914. The plaintiffs have not produced any registered kabuliyat with respect to this period, but the lease executed by Munshi Mridah (Exh. 9‑F) on the 22‑11‑1907 covers this period as the period of the lease, was from 1907 to 1914. In addition to this, the plaintiffs have produced collection papers. In this period the defendants have produced registered kabuliyat and some collection papers. The Subordinate Judge has devoted a great deal of attention to the examination of the collection papers produced by the plaintiffs, and has held that they are of no value. He has taken pains to show that the various sums alleged to have been realized by the plaintiffs from the various fishermen have not been accounted for in the collection papers. When examining the collection papers of the defendants, however, the same standard of proof has not been adhered to. In any case, if the plaintiffs were not able to realize all the lease money that was due from various fishermen, that does not show that the plaintiffs had relinquished possession of the Beel or that the kabuliyats produced by them were mere paper transactions. The principal point taken by Mr. Dass throughout his argument was that the plaintiffs began to get fictitious leases executed in their favour a long time ago as they were preparing to institute a suit in order to oust the defendants who had been in adverse possession of the Beel for a long time. This argument has not appealed to me in the least. Collusive leases and collusive litigation for a period of about 30 years would credit the plaintiffs with an amount of intelligence, industry, and craftiness, which under the circumstances of the present case, cannot be attributed to them. The sixth period ranging from April 1914 to April 1920 is of the utmost importance. No kabuliyats or collection papers have been produced by the plaintiffs for this period. During this period there were disputes between the plaintiffs and the zemindars of Rajapore relating to the boundaries of their respective estates and also with reference to the Chardah feel. These disputes culminated in proceedings under section 145 of the Cr. P. C. being taken against both parties, namely, the plaintiffs and the zemindars of Rajapore at the instance of tile Police. In this connection it is necessary to refer to the record of the Sub‑divisional Magistrate, Sylhet, dated the 5th of February 1920 (Exh. 5). These proceedings show that the plaintiffs were the first party to the proceedings and Rajapore Zemindars were the second party. The Magistrate pasted the following order which may be reproduced in extenso :‑ "Whereas I am satisfied from Police report dated 1st February 1920, and telegrams of date submitted by the Sub- Inspector of Police, Thana Dharampassa that a dispute likely to cause immediate breach of peace exists concerning the possession and fishing in the‑Sarda Beel described below within the local limits of my jurisdiction between the parties named above, they are hereby required to attend my camp at Dharmapassa in person or by pleader on 11th February 1920, and to put in their written statements of their respective claims as respective the fact of actual possession of the said Sarda Beel fishery." This document is a part of the judicial record and must be taken to state the facts correctly. It shows unmistakably that the plaintiffs were exercising rights of ownership on Charadah Beel on the one hand, while the zemindars of Rajapore were asserting their rights of possession on the other. There was imminent danger of the breach of the peace as between these two parties. The defendants were not in the picture at all. Had they been in possession of the Beel and had they been exercising rights of possession thereon they would have been also made a party to these proceedings. When confronted with this document Mr. Dass contended that the proceedings under section 145 of the Cr. P. C. between the plaintiffs and the zemdndars of Rajapore were collusive. This argument is devoid of all force. The order of the Magistrate was passed on the basis of a Police report, dated the 1st of February 1920, by the Sub Inspector of Police, Thana Dharmapassa. If the arguments of Mr. Dass were given effect to, we will have to hold that the plaintiffs, the zemindars of Rajapore, the Police, and the S. D. M. were all enacting a farce in order to prejudice the case of the defendants in any litigation that may be launched by the plaintiffs later on. The proceedings in Suit No. 97 of 1922 also lead to the conclusion that the plaintiffs instituted a suit in 1922, against the Rajapore zemindars and continued this suit till the 29th February 1928, when a compromise was entered into between the parties (p. 411, Part 11). It was agreed between the parties under this compromise that the plaintiffs would be entitled to take possession of the land decreed in their favour through Court at their own costs. The plaintiffs will not be entitled to take delivery of possession as aforesaid before July 1928 (Assar 1335 B.S.). The plaintiffs gave up the claim for costs and mesne profits against the defendants. This compromise was again described as collusive by the counsels for the appellant. The proceedings in Title Suit 97 of 1922, continued for a period of 7 years. Even at the end of 7 years the defendants fused to give possession until they had cut their crop. The plaintiffs were, therefore, not entitled to take possession for a period of about 3 or 4 months. The terms of the compromise, the duration of the litigation, and all the surrounding circumstances show unmistakably that this litigation from 1922 to 1928 between the plaintiffs on one side and the zemindars of Rajapore on the other was not collusive. It further shows that the defendants were not claiming any right with respect to this Beel during this period by adverse possession, otherwise they would have taken steps to be made parties in this litigation. I am, therefore, fully convinced that the trial Court took an erroneous view in holding that this litigation was collusive and that the learned Judges of the Calcutta High Court were quite right in attaching a great deal of importance to this suit. In view of the proceedings that the plaintiffs were con ducting from 1919 till 1928 in the civil and the criminal Courts it is not surprising that they have not been able to produce any collection papers with respect to this period. The sixth and the 7th period thus form one unit. The appellant has produced a registered kabuliyat (Exh. A5) executed on the 25th September 1920, by Sadu Malo for a period of 5 years, but this kabuliyat refers to a large number of Beels, and as far as Chardah Beel is concerned, it might only cover that small area of the Chardah Beel which falls within the estate of the defendant. The evidence of the plaintiffs ranging from 1919 to 1928 is, in my view, conclusive on the point that they were exercising rights of ownership in respect of Chardah Beel during this period. Mr. Dass, on behalf of the appellant, placed a great deal of reliance on Exh. 7, dated the 26th of September 1932. On that day, Mr. K. C. Datta, Magistrate made an order under section 145 of the Cr. P. C. in favour of the defendants in respect of the Chardah Beel. This document, in my opinion, is of no assistance whatsoever to the appellant. On the other hand, there are certain passages in the order of the Magistrate which establish that even in 1931 and 1932 the plaintiffs were exercising rights of ownership on the Chardah Beel. This is clear from the following passage in the judgment :‑ "It is to be determined however whether the 1st party actually entered into possession of the Beel. It will be seen that though the hukumnamas were executed as early as Chaitra, 1334 B.S. or Balsak 1335 B.S. the sukhair zemindars did not take actual delivery of possession till about 9 or 10 days after the institution of the case. The contention therefore that they acquired peaceful possession before this is absolutely unmerited as the sulenama clearly indicated that possession was to be taken through Court." This shows that sukhair zemindars i.e. the plaintiffs had taken actual possession for 9 or 10 days after the institution of the case which commenced on the 18th of January 1932. If the title in the Beel vests in the plaintiffs' possession for 8 or 9 days even would give them a right to institute their suit for possession within 12 years of the date when their possession terminated. The present suit was instituted on the 19th September 1935. If the plaintiffs exercised any rights of ownership in respect of the Chardah Beel between 1923 and 1935 their suit cannot be held to be barred by limitation. The criminal proceedings of 1920 between the plaintiffs and the Rajapore zemindars, the compro mise decree obtained by the plaintiffs in 1928, and the order of Mr. K. C. Datta, show conclusively, in my opinion, that the plaintiffs were exercising rights of ownership in respect of the Beel in 1920, 1928 and in 1932, and that in these circumstances, the provisions of Article 142 of the Limitation Act cannot be a bar to the present suit for possession. The nature of the property was such that it was impossible for the plaintiffs to safeguard their rights effectively against all trespassers. In 192, the Rajapore zemindars began to trespass on the property of the plaintiffs. The plaintiffs and the Rajapore zemindars were parties to the criminal litigation which ended in favour of the Rajapore zemindars. The plaintiffs, however, instituted a suit in 1922 to safeguard their rights, conducted that suit diligently for a period of 6 years and were successful in 1928 in enforcing their rights by means of a compromise decree. It must be presumed that the plaintiffs took possession of the Beel as soon as Boro crops of the Rajapore zemindars were cut in July 1928, and that they remained in possession of the Beel from 1928 to 1931, when their possession was again interrupted by the defendants. They tried to protect their rights by a resort to the criminal Court, but as the order under section 145 went against them, they instituted the present suit to establish their rights. It is obvious from the nature of the property, that as a very small portion of the Beel was contiguous to the property of the defendants they continued to get some fishermen to execute leases in their favour on various occasions on payment of a certain amount of lease money for catching fish. This, however, does not show that the plaintiffs were dispossessed, or that the acts of the defendants at any time amounted to ouster of the plaintiffs from the property, the title of which vested in them. For the reasons given above, I would affirm the decision of ‑the Calcutta High Court and dismiss this appeal with costs. The costs will be payable by the appellant (defendant No. 1) to the contesting respondents. Appeal dismissed.