ALLI BABI Vs. KRISHNA SAHU
LAWS(ORI)-1950-4-5
HIGH COURT OF ORISSA
Decided on April 27,1950

Alli Babi Appellant
VERSUS
KRISHNA SAHU Respondents

JUDGEMENT

PANIGRAHI, J. - (1.) THE unsuccessful plaintiffs in the lower Court are the appellants in this appeal. They claimed the suit -lands measuring about 139 bharanams in Aainipur, an inam village in Attagada Estate, by virtue of their long possession and, in the alternative, claimed to have acquired occupancy right in them under the provisions of the Madras Estates Land Act. It will be enough to state in broad outline the salient facts giving rise to this claim. One Mir Ashraff was admittedly the Jahagirdar of this village of Asinipur, within the limits of which the suit lands are situate. Fateh Mohammad was his sister's son, to whom he gave his daughter, Ali Bibi in marriage. Plaintiff 1 is the widow of Fateh Mohammad, plaintiff 2 is his daughter and plaintiffs 3, 4 and 5 are his sons. Plaintiffs 6, 7 and 8 are the legal representatives of plaintiff 3 who died during the pendency of the suit. The plaintiffs alleged that the lands described in Schedule B of the plaint had been given by the late Jahagirdar, over fifty years ago to his sister, and that they remained in possession of the same for this period. They also alleged that they occupied the suit -lands, described in Schedule C of the plaint, about thirty years prior to the date of the plaint and were in possession thereof till 1936 when they were evicted by an order of the Sub -divisional Magistrate, Chatrapur, in a proceeding under Section 146, Criminal P. C. The plaintiffs further alleged to have been admitted to possession of the suit lands under a registered muchalika dated 22nd November 1923 (Ex. J.) executed by plaintiffs 4 and 5 in favour of defendant l and thereby to have acquired a right of occupancy under the provisions of the Madras Estates Land Act. The contention of defendant 1 was that he purchased the suit -lands, described in Schedule C from the late Jagirdar Mir Ashraff by a registered sale deed dated 8th July 1911 (Ex. D) and that he had been in possession of these lands through his tenants. He also alleged that ha never admitted the plaintiffs into possession of the suit -lands as raiyats. Defendant l filed a suit in the Court of the Subordinate Judge, Berhampur, in O. S. No. 41 of 1925 against Fateh Mohammad and his sons, viz., the present plaintiffs 3 to 5, for ejectment and obtained a compromise decree on 3rd August 1927 (Ex. E/4) whereby the plaintiffs agreed to surrender possession of the suit lauds within 16 days after Magh Purnima day of Fasli 1337. This decree was not executed, but defendant 1 alleges that the plaintiffs surrendered possession in pursuance of the terms of the compromise. On 22nd November 1928 the plaintiffs 4 and 5 executed Ex. J in favour of defendant 1 agreeing to occupy the suit lands, besides some other lands in the village, for a term of two years, But it is said that the plaintiffs neither paid the stipulated rent nor did they vacate the lands after the expiry of the lease. It is further alleged that when defendant 1 sent registered notices to plaintiffs 3 to 5 demanding rent for the preceding years (Exs. 3, 3/a and 3/b) plaintiff 3 disclaimed all knowledge of the muchalika and plaintiffs 4 and 5 replied that the lease deed was a nominal document and that they had not been put in possession of the lands in accordance with the terms of the lease. It is said that the lands were left fallow in 1935 and that in May 1936 defendant l leased them oat to four different persons under four registered kabuliyats (Exs. X, X/1, X/2 and X/3). During the harvest season of that year the plaintiffs out and carried away the crop pertaining to these lands, which led to the institution of a criminal case of theft by Lakhano Goudo, one of the tenants of defendant 1 (under Ex. X/3) and to the initiation of proceedings under Section 145, Criminal P. C. by the Sub -divisional Magistrate, Chatrapur, as there was likelihood of a breach of the peace, who directed the eviction of the plaintiffs from the lands as already stated above.
(2.) THE learned Subordinate Judge who tried the suit found that the plaintiffs had failed to prove their title either by way of a grant or through long possession. He also found that plaintiffs 3 to 5 entered upon the lands as tenants in 1921 (relying upon EX. 0, dated 19th July 1921 executed by plaintiff 5 in favour of defendant 1) and that they were evicted in the year 1928 in pursuance of the terms of the compromise decree dated 3rd September 1937 in O. S. No. 41 of 1925 (Ex. E/4). The learned Subordinate Judge has further found that at the end of the period stipulated in the compromise the plaintiffs did surrender possession of the lauds and again entered upon the lands under a fresh registered muchalika in the year 1928, viz., Ex. J. He accordingly dismissed the plaintiffs' suit. Two points have been pressed by Mr. D. V. Rao, learned counsel appearing for the plaintiff -appellants: (1) firstly that as the plaintiffs have been found to have been in possession since 1992 upto 1935, they are entitled to claim the suit lands byreason of adverse possession and (a) secondly that since plaintiffs 4 and 6 are alleged to have been admitted into possession and have in fact been in possession for over 12 years all the plaintiffs have acquired a right of occupancy in the lands under the provisions of the Madras Estates Land Act as they all belong to one joint family.
(3.) IT is but fair to state at the outset that Mr. Rao very soon realized in the course of his arguments that his first contention, based on adverse possession could not be substantiated. Whatever might be the nature of the possession prior to the compromise decree, it cannot be said that possession of the plaintiffs remained adverse after the passing of the compromise decree. In the compromise the plaintiffs distinctly admitted defendant's title and agreed to give up possession of the suit lands, but they were allowed to retain the lands as defendant's tenants till Magh Purnima day of Fasli 1337 ; and it is admitted by the defendant himself that the plaintiffs did surrender possession. Even if it is assumed that the plaintiffs did not actually surrender possession, there is still a clear break in the nature of the plaintiffs' possession by reason of their admission of the defendant's title and the agreement to deliver up possession. Adverse possession, in order to confer a title, must be continuous for the fall period of 12 years. This contention must therefore fail and has been rightly abandoned by the learned counsel appearing for the plaintiffs.;


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