Amritlal Vs. Keshriprasad Bilaiya and anr. - Court Judgment

G.P. Singh, J.

1. This is an appeal by defendant No. 1 Amritlal against a declaratory decree that the plaintiff-respondent and the members of his family are the owners and Bhumiswami of a tank, khasra No. 1357, area 1.19 acres, of village Murwara. The declaration in favour of the plaintiff-respondent has been granted on the 'basis that the tank belonged to his ancestors and, in the alternative, on the basis of title acquired by adverse possession. The findings of the trial Court on both these points have been assailed by the defendant appellant.

2. We will first take up the point of Initial title. The plaintiff's case is that the tank was originally known as 'Tri-sool Babaki Talaiya' and that along with some other land it was granted to his great grandfather Param Bilaiya and grand-uncle Gunthe Bilaiya by the then Malguzar Thakur Ramdutt in the year 1875. It is further alleged by the plaintiff that in course of time this tank came to be known as 'Bilaiya ki Talaiya', suggesting the ownership of Bilaiya family. The defendant's case is that the land on which the tank exists was granted to his grandfather Karan Singh along with some other lands in 1-884 by the Malguzar Ramdutt and thereafter his grandfather constructed the tank.

3. To prove his title, the plaintiff has produced the original grant EX P-13 made by Thakur Ramdutt in favour of the plaintiff's ancestors. This document is dated 19th July 1875. It does appear that the plaintiff's ancestors got 800'X 361)' of land including a tank known as 'Trisool Babaki Talaiya' under this document. The document, however, does not give the khasra numbers and, therefore, jt cannot be said that the tank in dispute in this suit is the same which is described as Trisool Baba ki Talaiya in Ex. P-13. The trial Court has observed that the boundaries given in Ex. P-13 include the tank. In our opinion, this observation is incorrect. There is absolutely no description of any boundary towards north, south and west. The only description is about the eastern boundary which is referred to as the compound of Aftar Sahab. Towards the bottom of the document there appears to be signature of one Harchand Rai, which has been mistaken as a description of western boundary. It has further to be noticed that the land granted to the plaintiff's ancestors under Ex. P-13 was about 61/2 acres end the tank with which we are concerned in this suit is only in 1.19 acres of land. The boundaries of the land existing in the year 1-875 must have considerably changed by the time the suit came to be instituted. For these reasons, even if there had been more definite des-cription of boundaries on all the sides, it would have been difficult to say only on the strength of boundaries that the tank in suit is the same 'Talaiya' which is referred to in Ex. P-13. The plaintiff has also produced Ex. P-4, a commendatory letter dated 1st Aug., 1877 issued by the Commissioner, Jabalpur, In this letter, the Commissioner has appreciated the act of Param Bilaiya in constructing a Chah. The plaintiff's contention is that the Chah referred to in this letter is the tank in suit which was constructed by Param Bilaiya. There are at least three reasons why this document is not of much help to the plaintiff. First, the case of the plaintiff is that when Param Bilaiya got the lands under Ex. P-13, the tank was already there and was then known as Trisool Baba ki Talaiya, which in course of time came to be known as Bilaiya ki Talaiya. It is not the plaintiff's case that the tank in suit was constructed 'by Param Bilaiya. Secondly, the word 'Chah' which is a Persian word primarily means a well; it does not ordinarily mean a tank. This is deposed to by Pannalal (D.W. 5) with reference to certain dictionaries which he brought in Court. Pannalal is a graduate in Urdu, Some of the dictionaries referred to by Pannalal in his evidence were also produced before us. We have no hesitation in accepting the statement of Pannalal (D.W. 5) that the primary meaning of Chah is a well, even if in some context it may refer to a tank. Thirdly, Ex. P-4 does not mention the land over which the Chah referred to therein was constructed by Param Bilaiya. It was not disputed before us that the plaintiff owns a well near the tank in suit. It appears to us that in 1877 Param Bilaiya constructed a well for public use and Ex. P-4 was written by the Commissioner, Jabalpur, in that context.

4. As against the documents produced by the plaintiff, the documents of title produced by the defendant are clear and specific. Ex. D-1 is a receipt execut-ed by the Malguzar Thakur Ramdutt Deodutt in favour of Seth Karan Singh of Kathiawar, in respect of khasra Nos. 1231 to 1235 for a sum of Rs. 672. This document although not referred to in the written statement was produced at the earlier opportunity. Even the trial Court has not doubted its genuineness. It is not disputed before us that in 1884 the present khasra No. 1357 in which the tank exists was khasra No. 1235. The documents Ex. D-l, therefore, is specific on the point that the land in which the tank in suit exists was conveyed to the defendant's grand-father who hailed from Kathiawar and who was doing business at Murwara. Any doubt about Ex. D-l is dispelled by the settlement entry. Ex. D-8 is the settlement khasra and Ex. D-9 is the Jamabandi of the settlement that took place in 1891-92. Khasra No. 1235 is recorded in the name of Karan Singh in Exs. D-8 and D-9. It is also recorded in Ex. D-8 that a tank had been constructed by Karan Singh in khasra No. 1235. The settlement entries in Ex. D-8 read along with Ex. D-l would show that Karan Singh acquired khasra No. 1235 in 1884 from the Malguzar and sometime before 1'891 he constructed a tank in this land. Ex. D-4 dated 13th Sept. 1893 is a receipt issued by the Municipal Officer, Murwara, stating that Rs. 90/5/0 were received from Seth Meghaji, brother of Kanji, for cleaning the tank. It may here be mentioned that Kanji was defendant's father. Ex. D-3 is a document relating to the partition in the defendant's family which took place in 1902. This document also mentions the tank of Murwara as one of the properties which were subject-matter of partition Ex. D-6 and Ex. D-7 are respectively settlement khasra and Jemabandi of the year 1906-07. In this settlement, khasra No. 1235 over which the tank was constructed by Karan Singh, the defendant's grand-father, was re-numbered as khasra No. 1357. This number in Exs. D-6 and D-7 is recorded in the name of Kanji, the defendant's father. In our opinion, the aforesaid documents conclusively establish that khasra No. 1357 in which the tank in suit exists was acquired by the defendant's grand-father Karan Singh and it was he who constructed the tank. In view of the defendant's documents referred to above, it cannot be held from the plaintiff's documents Exs. P-13 and P-4 that khasra No. 1357 was acquired by the plaintiff's ancestors, or that the tank in suit was constructed by them. It is true that in Ex. P-13 Tri-sool Baba ki Talaiya is referred to, but that tank must be different and may have been filled up in course of time. The plaintiff has led oral evidence that the tank in suit is known as Bilaiya ki Talaiya to show that it was constructed by one of his ancestors. nO reliance can be placed upon this oral evidence in view of the clear and unequivocal documents produced by the defendant.

5. The settlement operations of 1891-92 and 1906-07 were undertaken under the Land Revenue Act of 1881. Under Sections 78 and 83 of that Act which correspond to S. 80 of the Land Revenue Act of 1917, the entries made in settlement become binding if not set aside within one year; [Secy. of State v. Habibulla, AIR 1937 Nag 407 and Motishah v. Abdul Gaffar Khan, 1956 Nag LJ 157 at p. 164 : (AIR 1956 Nag 38 at p. 41)]. Even if it be held that the settlement entries are not conclusive, they at least raise a very strong presumption in favour of the defendant's title and it was for the plaintiff to prove that these entries were wrong. In our opinion, the plaintiff has completely failed to discharge this burden. The plaintiff's name or the name of his ancestors does not appear even in the annual village papers till 19-36-3Y. It is only from this year that the plaintiff's father is entered in wrongful possession in the remarks column. In the columns relating to title and possession, the names of the defendant and his ancestors are throughout entered. We will consider the value of entries in the remarks column relating to possession of plaintiff's father while taking up the case of adverse possession. At this stage, it is sufficient to say that these entries do not show that the title initially vested in the plaintiff or in his ancestors. We are clearly of opinion that the plaintiff has failed to prove that the land khasra No. 1357 belonged to his ancestors or that the tank in suit was constructed by his ancestors. On the other hand, as earlier stated, the defendant has been successful in proving that this land was acquired by his grand-father Seth Karan Singh and it was he who constructed the disputed tank.

6. We now take up the point of adverse possession. In appreciating the evidence led by the plaintiff to show his possession, certain principles have to be kept in mind. When any land or immovable property is not of any immediate use to the owner or when the possession is merely constructive, the doctrine that 'possession follows title' applies. There can be no dispossession or discontinuance of the possession of the owner by mere absence of use and enjoyment when the land or the property is not capable of any use and enjoyment. It is on these principles that it has been held thatj while lands are submerged constructive possession is with the true owner, and that it is so even though immediately prior to the diluviation physical posses-sion had been with the adverse claimant. Reference in this connection may be made to Basant Kumar v. Secy. of State, AIR 1917 PC 18 where the following pertinent observations were made by Lord Sumner:

'A man may cease to use his land because he cannot use it, since it is under water. He does not thereby discontinue his possession; constructively it continues until he is dispossessed; and, upon the cessation of the dispossession before the lapse of the statutory period constructively it revives. 'There can be no discontinuance by absence of use and enjoyment, when the land is not capable of use and enjoyment,' per Cotton, L. J. in Leigh v. Jack, (1879) 5 Ex D 264. It seems to follow that there can be no continuance of adverse possession, when the land is not capable of use and enjoyment; so long as such adverse possession must rest on de facto use and occupation.'

'Again, to apply the test suggested by Bramwell, L, J. in Leigh v. Jack at p. 273, '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 is impossible' says Lord Halsbury in Marshall v. Taylor, (1845) 1 Ch 641, '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.''

Mention may also be made of another Privy Council case, Bhupendra v. Baje-ewar, AIR 1931 PC 162, where their Lordships expressed themselves as under:

'But the doctrine that 'possession follows title' is well established: see per Maule, J., in Jones v. Chapman, (1349) 2 Ex 803 at p. 821 and the remarks of Lord Blackburn in Bristow v. Cormican, (1878) 3 AC 641 at p. 661. So while lands are submerged, constructive possession is with the true owner, and that, though immediately prior to the diluviation physical possession had been with the adverse claimant: Secy of State v. Kri-shnamoni Gupta, (1902) ILR 29 Cal 518 and Kumar Basanta Roy v. Secy, of State, AIR 1917 PC 18.

7. It is not disputed that the tank in suit is neither used for growing Sin-ghara nor for growing any other crop. It is also not used for fishing or pisciculture. The plaintiff's case is that he was in possession in the sense that no one was allowed to use the water of the tank unless permitted to do so by him or his servants. In our opinion, the oral evidence of this nature produced by the plaintiff appears to be false. Ex. D-5 is Kistbandi Khatauni for the year 1954-55. This document refers to the Wajib-ul-arz and states that villagers have Nistar rights of bathing etc. in the tank, Khasra No. 1357. It is further recorded that the villagers also use the water of the tank as drinking water for their cattle, and that the cattle are also taken to the tank for purposes of bathing and cleaning. The entry of Nistar rights in Wajib-ul-arz and Kistbandi Khatauni for the year 1954-55 goes to show that the Nistar rights of the villagers did not depend upon grant of any permission and the acts of user of the tank for Nistar purposes were done by the village community as of right. Had the plaintiff's case been true that no one was allowed to use the water of the tank without his permission, there would have been no entry of Nistar rights in the Wajib-ul-arz Ex. P-1 dated 22nd January 1958 is a document which has been produced to prove that contract for cleaning the tank was given by the plaintiff to certain persons. However, the signature of Nanhu (P.W. 1), who has been produced to prove this document, does not appear on it. Such a document could have been prepared at any time. We do not think that .any reliance can be placed on Nanhu's evidence. Ex. P-2 is another document dated 8th May 1961. This is a letter purporting to authorise Babadeen (P. W. 2) to construct a hut on the consideration that he would look after the well and the tank belonging to the plaintiff. No reliance can be pieced on this document also, because Babadeen (P. W. 2) has deposed that the permission referred to in the said document was granted to him by Baboolal, plaintiff's father, and it was much later after Baboolal's death that the plaintiff obtained the said document. It appears that this document was prepared to bolster up a case that the plaintiff was engaging servants or Chowkidars for looking after the tank. It may here be mentioned that even the trial Court has not given any importance to the documents Exs. P-1 and P-2. Ex. P-5 is a notice said to have been issued by the Secretary, Municipal Committee, Murwara, on 22nd March 1952, to the plaintiff to clean the tank. This document, however, does not show that the plaintiff did actually clean the tank and is, therefore, of not much use. Ex. P-8A dated 1st June 1952 is an advertisement in a newspaper 'Bharti' by the plaintiff through which he wanted to contact some person who could plant water-lilies in the tank. There is, however, no evidence that water-lilies were actually planted by the plaintiff. Ex. P-l dated 7th June 1953 is a letter from one V. P. Nigam (P. W. 1) for permission to take the water. Although Nigam (P. W. 1) does say that nobody could take water without the permission of the plaintiff, we are unable to accept his evidence. We have already observed that had the plaintiff's case been true that no one was allowed to use the water of the tank without his permission, there would have been no entry of Nistar rights in the Kistabandi Khatauni for the year 1954-55 (Ex. D-5) which also refers to the Wajib-ul-arz. Considering the- evidence produced by the plaintiff, we are not satisfied that the plaintiff did any act which could amount to dispossession of the true owner.

7-A. Strong reliance has been placed by the learned counsel for the plaintiff-respondent on the entries in the remarks column in the annual village papers from 1937 to 1962-63. It is true that in the remarks column of the said annual village papers possession of the plaintiff or his father has been entered, but at best it only goes to show that the plaintiff asserted possession over the tank. Mere assertion of possession is, however, not possession. The plaintiff has failed to prove any act done by him or by his father which may have had the effect of dispossessing the defendant. As earlier stated, when the nature of the property is such that it cannot be put to any immediate use by the true owner, the doctrine that 'possession follows title' holds the field. The tank was not meant for being used for raising any crop or for fishing and the village community had rights of Nistar in it. In the circumstances, the defendant and his predecessors could have hardly done .any act for making the use of the tank in the exercise of their right of ownership and possession. As the defendant and his predecessors were the owners, they must, in the circumstances, be deemed to have continued in possession. It may here be mentioned that it is not the case of the plaintiff that he ever paid any land revenue in respect of the tank in suit. On the other hand, it has been stated on behalf of the defendant that the land revenue was all along paid by him. The revenue papers which have earlier been referred to go to show that the tank was assessed to the land revenue of 0-14-0 annas. We have no hesitation in 'believing the evidence that the land revenue was all along paid by the defendant.

8. On a consideration of the entire evidence and the nature of the property involved, we are clearly of opinion that no case of adverse possession has been made out by the plaintiff. The plaintiff has thus failed to establish his title.

9. The appeal is allowed. The judgment and decree passed by the trial Court are set aside and the plaintiffs suit is dismissed with costs throughout.