Judgment:
Y. Ibotombi SIngh, J.
1. One cannot conceive of a greater judicial sin than the sin of evicting a person from the land which has been in his possession continuously as his own for more than five decades along with his members by constructing dwelling houses under a defective title which he considered to be genuine.
2. This appeal by the plaintiff is directed against the judgment and decree of the learned Additional District Judge, Manipur passed on 17-2-1977 in Civil Appeal No. 14/76/2(1) of 1977 whereby he reversed the decree of the Munsiff, Thoubal passed on 31-3-76 in Original Suit No. 35 of 1974 which granted the reliefs claimed by the appellant.
3. The appellant Shri Saikhom Ningthem as the plaintiff instituted a suit in the Court of the Munsiff, Thoubal being Original Suit No. 35 of 1974 for declaration of his title to the land covered by Old Patta No. 33/934, Thoubal Tahsil corresponding to new patta No. 33/967, Thoubal Tahsil measuring 56 acres, hereinafter referred to as the 'Suit Land' and for recovery of possession of a portion of the suit land measuring 30 acres situated within the said land on southern side by evicting the defendants Nos. 1 and 2 therefrom after demolishing a katcha structure standing thereon and also for cancellation of their names from the land record in respect of the said land.
4. The plaintiff's case was that the suit land belonged to and stood in the name of his late father Sekhor alias Chaoba Singh who died about 30 years ago leaving the plaintiff as his only son and sole legal heir, the proforma defendant No. 4 as his widow and defendants Nos. 5 and 6 as his daughters and during his life time, he possessed the suit land along with his family members. After his death, the plaintiff inherited the same and has been possessing the suit ingkhol with his family members till the institution of the suit. The plaintiff's case goes further that the plaintiff
permitted the defendant No. 1 to live temporarily in the plaint schedule 'B' land sometime in the year 1959 and since then the defendant No. 1 with his family members including his son defendant No. 2 has been living within the said portion of the suit land by constructing a katcha house (schedule 'C' of the plaint) as permissive possessor but in the last survey operation the defendants Nos. 1 and 2 got their names recorded as co-pattadars without the knowledge of the plaintiff and without any colour of right. The plaintiffs case also goes further that on coming to know the said entry of the names of the defendants in the month of July, 1973, the plaintiff asked the defendants Nos. 2 and 3 to cancel their names but to no effect. All his attempts to persuade them to cancel their names having been abortive, he determined the said permissive possession and asked the defendant No. 1 to vacate the plaint schedule 'B' land, portion of the suit land but the defendant No. 1 has not vacated the said land as yet. Instead, the defendants Nos. 2 and 3 asserted their title to that portion of the suit land.
5. The further case of the plaintiff was that the defendant No. 3 has transferred by way of sale the plaint schedule 'D' land of the suit land to the defendant No. 7 under a registered deed of sale dated 17-1-72 without passing any consideration money in collusion with each other. The existence of the said sale-deed has injured the right of the plaintiff and thus the aforesaid act of the defendants have also clouded the title of the plaintiff to the suit land. Hence the suit.
6. The case of the defendants Nos. 1 and 3 who resisted the suit was that the suit land belonged to Chamu Singh who died leaving behind the said Sekhor Singh, father of the plaintiff and the defendants Nos. 1 and 3 as his legal heirs and on the death of Chamu Singh, the three inherited the suit ingkhol. It was averred that late Sekhor Singh got the northern 1/3rd of the suit ingkhol while the defendants Nos. 1 and 3 got the middle l/3rd and southern 1/3rd of the suit ingkhol respectively and that they occupied and possessed their respective shares of the suit land as owners but the mutation of their
names was not done as they were brothers, and Sekhor Singh being the oldest brother, used to pay revenue of the suit land after contribution of their shares of revenue.
7. It was also their case that their names and the name of the plaintiff were entered in the relevant records during the last survey operation and that the defendant No. 1 had caused the name of his son the defendant No. 2 to be entered in respect of a part of the suit land. These facts have invited an objection from the plaintiff which was registered as Misc. Case No. 5/SDC/Th/12 of 1972 in the Court of the SDC, Thoubal and the said case was disposed of in spite of the said objection of the plaintiff.
8. They have denied that they have possessed the said portion of the suit land as permissive possessors of the plaintiff and that their names have been entered in the records of rights during the survey operation. They also denied that the plaintiff determined the permissive possession and that the plaintiff asked them to vacate the suit land. They also denied that the sale transaction between the defendant Nos. 3 and 7 was collusive and void and they averred that the said transaction was a genuine and valid one. It was also averred that the suit was barred by limitation under Article 65 of the Limitation Act in respect of the 2/3rd portion of the suit land under the exclusive and continuous possession of the defendants Nos. 1, 2 and 3 since 1919 even assuming the suit land belonged to plaintiff's father late Sekhor Singh.
9. The defendants Nos. 2 and 7 also resisted the suit by filing separate written statement on the same line as submitted by the defendants Nos. 1 and 3.
10. Upon the above pleadings of the parties the learned Munsiff formulated as many as 11 issues including the following 4 issues :--
'1. Was late Sekhor Singh alias Chaoba Singh the sole and absolute owner pattadar of the plaint schedule 'A' described land?
2. Did the plaintiff inherit the entire suit land on the death of his father as the sole heir? or,
Did the suit land originally belong to late Chamu Singh? Did Sekhor Singh, the defendants Nos. I and 3 inherit the suit land on the death of Chamu Singh in 1919? Was there a mutual partition in the year of death of. Chamu Singh amongst Sekhor Singh, the defendant No. 1 and the defendant No. 3 and did each of them get their respective one third share of the suit land as alleged by the defendants?
3. Whether the defedant No. 1 and his family including the defendant No. 2 were the permissive possessor of the plaint schedule 'B' described portion of the suit land as alleged in para Nos. 3 and 4 of the plaint? If so, had the plaintiff determined the permission as alleged in para No. 7 of the plaint?
9. Whether the suit is barred by Article 65 of the Limitation Act as alleged?'
11. The learned Munsiff found that late Sekhor Singh alias Chaoba Singh, father of the plaintiff was the sole and absolute owner pattadar of the plaint schedule 'A' land; that the plaintiff inherited the entire suit land on the death of his father, as the sole legal heir; that the defendant No. 1 and his family including the defendant No. 2 were the permissive possessors of the plaint schedule 'B' described portion of the suit land; that the plaintiff had determined the permissive possession; that the defendant No. 3 had the saleable right over the plaint schedule 'D' land and that the suit was not barred by Article 65 of the Limitation Act. On the basis of the above findings the learned Munsiff decreed the suit.
12. However, by his judgment and decree dated 17-2-77 passed in Civil Appeal No. 14 of 1976/2(1) of 1977, the learned Additional District Judge reversed the said judgment and decree of the learned Munsiff holding that the suit land belonged to Chamu Singh, father of late Sekhor Singh and that on the death of Chamu Singh, the suit land was inherited by Sekhor Singh (father of the plaintiff), the defendant No. 1 and the defendant No. 3 and also that the suit was barred by Article 65 of the Limitation Act.
It was against this judgment and decree of the learned Additional District Judge that the present appeal has been preferred.
13. In this appeal, the points for consideration are as follows :
1. Whether the suit land, that is, the plaint schedule 'A' belonged to Chamu Singh or his son Sekhor Singh?
2. Whether the defendants Nos. 1 and 3 have been in possession of the plaint Schedule 'B' and 'D' lands continuously, adversely as their own for more than the statutory period of 12 years? If so, whether the plaintiff's suit is barred by Article 65 of the Limitation Act?
14. Right in the beginning, Shri T. Bhu-bon Singh, learned counsel for the respondents has vehemently urged that the findings of the first appellate Court on title and limitation are the finding of facts and, therefore, this Court cannot make a fresh appraisal of the evidence and come to different findings contrary to the findings recorded by the first appellate Court. However, Shri Nilamani Singh, learned counsel for the appellant has strenuously submitted that the findings of the learned trial Court on title and limitation were reversed by the learned Additional District Judge on the basis of some conjectures and assumptions and, therefore, the interference by this Court is absolutely necessary to render justice to the appellant.
15. While accepting that in a second appeal a finding on fact, even if it is erroneous, will generally not be disturbed, I cannot but hold that where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions, then the High Court will be well within its rights in setting aside in a second appeal a patently and erroneous finding in order to render justice to the parties affected by the erroneous finding. This leads me to the consideration whether there are materials to establish that the Lower Appellate Court reversed the findings of the trial Court on title and limitation on baseless assumption or that the findings of the Lower Court are vitiated by application of wrong tests or on the basis of conjectures and assumptions.
16. The learned trial Court relying mostly on the riotary patta Ext.A/3 and the Jama-bandi Ext.A/1 held that late Sekhor Singh,
father of the plaintiff was the pattadar of the suit land and that on the death of Sekhor Singh, the plaintiff being his sole legal heir inherited the suit land. However, the learned Additional District Judge reversed his said findings basing on the certified true copies of the two Dag Chithas (Ext.B/1 and Ext.B/2) and the certified copy of the Jamabandi Ext.B/3 holding that late Chamu Singh, father of the said Sekhor Singh and the defendants Nos. 1 and 2 was the owner pattadar of the suit land.
17. Ext.A/3 was issued on 18-10-76 by the then President of Mampur State Darbar under his own signature and seal and, therefore, it was a direct grant of the land comprised therein in favour of Sekhor Singh by the then Manipur State. There is, therefore, no doubt that Ext.A/3 is the document of title which confers title to the suit land in favour of Sekhor Singh. On this point, the learned Munsiff relied on the decisions made in AIR 1925 Madras 723 and AIR 1940 Madras 783. It was, in fact, on the basis of the said two documents namely, the ryotwary patta Ext.A/3 and Jamabandi Ext.A/1 that the learned Munsiff made his decision that the suit land originally belonged to Sekhor Singh. However, the learned Additional District Judge reversed the said decision stating that the riotary patta Ext.A/3 and the Jamabandi Ext.A/1 were not documents of title. The learned Additional District Judge, in support of his above contention, observed that their Lordships of Madras High Court did not say that the ryotwary pattas are title-deeds and that their Lordships simply observed in those cases that the patta in respect of the land in the mofussil of Madras Presidency was a document by deposit of which in the city of Madras an equitable mortgage over the property can be validly created and that it was granted as a matter of course to the person to whom the Govt, had granted the land. The learned Additional District Judge has also cited AIR 1928 Madras 299 (FB). In the said case, it was held that the pattas are not the evidence of title but only the evidence of possession as the Revenue Authority issued the pattas to the persons in possession. It appears that the learned Additional District Judge has misconstrued the decisions made in the said two earlier cases cited by the learned Munsiff. In the said two cases, their Lordships of Madras High Court categorically held that the pattas are the document of titles and that the pattas were granted as a matter of course to the person to whom the Govt. had granted the land. Therefore, the learned Munsiff rightly held that Ext. A/3 being a ryotwary patta, can be taken as a direct grant of the land comprised therein in favour of Sekhor Singh in respect of the suit land. After all, in this tiny State of Manipur there was no other document than the ryotwary patta which would confer title to the land comprised therein in those years in favour of the person whose name was recorded as owner. The learned Additional District Judge relying on the two Dag Chithas Exts.B/1 and B/2 and the Jamabandi Ext.B/ 3, held that since the name of Chamu Singh, father of Sekhor Singh and the defendant Nos. 1 and 3 is shown as the owner of the land comprised therein, that is, the suit land, it should be taken that Chamu Singh was the owner pattadar of the suit land. With the utmost respect to the learned Additional District Judge I cannot really understand how to appreciate his above observation. I said so, because, normally the order on the basis of which the name of the owner has been entered in the records of right, such as, Jamabandi and Dag Chithas is to be indicated in the remark column of the Jamabandi and Dag Chithas. However, as can be seen from Exts.B/1, B/2 and B/3, there is no entry in the remark column of the Jamabandi and Dag Chithas of the order on the basis of which the name of Chamu Singh was entered in the record of rights in respect of the suit land. The absence of such order indicates that the suit land was never granted or settled in favour of Chamu Singh by the competent authority and that the name of Chamu Singh was entered in the record of rights by some unscrupulous revenue officials without the order of the competent authority. After all, Shri Deven Singh who produced the revenue records could not produce any document or documents containing such order of granting settlement in favour of Chamu Singh in respect of the suit land. The learned Additional District Judge simply observed that since the Revenue Authority prepared the Jamabandi Ext.B/3 and the two Dag Chithas Exts.B/1 and B/2, it can be presumed that there should be or must be an order granting settlement in favour of Chamu Singh in respect of the suit land. Thus, the learned Additional District Judge came to this conclusion on the basis of conjectures and assumptions as rightly submitted by the learned counsel for the appellants. After all, if there was such an order, I do not find any acceptable reason why the said order should not be traced out. It is not the singular instance that the unscrupulous revenue official had entered in the record of rights the names of various persons without order from the competent authority. It appears that the learned Additional District Judge did not consider this aspect when he made his said finding. Thus the learned Additional District Judge reversed the correct finding of the learned Munsiff that the suit land belonged to Sekhor Singh and came to an erroneous finding that the suit land belonged to Chamu Singh basing on mere conjectures and assumptions that there must be an order granting settlement in favour of Chamu Singh. Hence, I find force in the above contention of the learned counsel for the appellant.
18. Having settled on the above point, I again proceed to consider the second point that whether the plaintiff's suit is barred by Article 65 of the Limitation Act in respect of the 2/3rd portion of the suit land, that is, the middle l/3rd and the southern l/3rd of the suit land (plaint schedule 'C' land). On this point, the case of the defendant Nos. 1 and 3 is that on the death of Chamu Singh the suit land devolved upon the three legal heirs, namely Sekhor Singh, defendant No. 1 and defendant No. 3 and that Sekhor Singh got the northern 1/3rd portion and the defendant No. 1 the middle 1/3rd and the defendant No. 3 the southern 1/3rd under mutual partition which took place in the year 1919 i.e. the year of the death of Chamu Singh. It was also their case that they have been occupying their respective shares of land since the said distribution till the institution of the suit
continuously and adversely as their own. There is no dispute that the defendant No. 1 has been occupying a Katcha house. The plaintiff's case is that he allowed him to live in that portion of the suit land as permissibe possessor. However, the plaintiff's evidence on this point has not been corroborated by any independent witness as rightly held by the learned Additional District Judge. Therefore, the plaintiff's version that he allowed the defendant No. 1 to live in the l/3rd middle pertion of the suit land along with his son defendant No. 2 as permissible possessor cannot be accepted. The learned Additional District Judge by giving cogent reasons and also relying on the evidence of the witnesses held that the defendant No. 1 has been in possession of that portion the suit land, that is, the middle 1/3rd continuously and adversely since the year 1919 as his own and as such the plaintiff's suit in respect of the middle 1/3rd portion of the suit land is barred by limitation. I think, he rightly did so. After all, this finding of fact on the question of limitation recorded by the first appellate Court on appraisal of the evidence after taking into consideration the entire circumstances of the case cannot he set aside by this Court in exercise of powers under Section 100 of the C.P.C. If any authority is to be cited on this point, we may conveniently rely on the decision made in AIR 1986 SC 1509. Hence, I am not inclined to disturb this finding of the Lower appellate Court.
19. However, as for the finding of the learned Additional District Judge regarding the southern 1/3rd portion of the suit land I find it difficult to support it because his finding on the question of limitation with regard to that portion of the suit land was not apparently based on material. As stated above, in their first written statement, the defendant Nos. 1 and 3 have categorically stated that they have been possessing their respective shares of land that is, the middle 1/3rd and the southern 1/3rd since the year 1919. However, in their written statement they have not state anything about the manner of possession of the defendant No. 3 in respect of his southern 1 / 3rd portion of the suit land. Further, none of the witnesses
produced by him also stated the manner of his
possession of his share land. On the contrary,
the evidence of the witnesses clearly shows
that he had been living in another ingkhol. In
such circumstances, it will be difficult to
maintain that he had been in possession of his
1/3rd portion of the suit land for more than
the statutory period of limitation. It appears
that the learned Additional District Judge did
not consider this aspect when he made the
above finding. Therefore, the finding of the
learned Additional District Judge that the
defendant No. 3 had been in possession of his
share 1/3rd land as his own for more than the
statutory period of limitation is not supported
by the facts and materials of the case. Hence,
it is my irresistible conclusion that the
plaintiff's suit in respect of the sourthern
1/3rd portion of the suit land is not barred by
limitation.
In view of my above decision, I hold that the plaintiff has right and title over the northern 1/3rd and sourthern 1/3rd portions of the suit land and that the defendants are liable to be evicted from the soutrhern 1/3rd portion of the suit land i.e. the plaint schedule 'D' land and also that the sale-deed dated 17-1-72 executed by the defendant NO. 3 in favour of defendant No. 7 is null and void and not binding on the plaintiff, the plaintiffs suit is decreed accordingly. The result is that the appeal is partly allowed, In the circumstances of the case, parties are to bear their respective costs throughout.