SAILU PAHAN Vs. POLTU CHIK

JUDGEMENT

(1.) This is a suit for recovery of possession of khata Nos. 63 and 62 of mouza Bunumda. The plaintiff-respondent instituted the suit on the allegation that his father Chamru left the village eleven years before the date of this suit. He died some time in 1936. He had a brother named Chamru Chik who also died in 1945. After the death of Chamru, when the plaintiff went to take possession he found the defendants in possession of the land, who claimed that they were there by virtue of their right as settlement holders of the land from the landlord. The plaintiff took recourse to a proceeding under Section 68, Chota Nagpur Tenancy Act, but the learned Deputy Commissioner referred him to the Civil Court. He alleged that the landlord had no right to take possession of the land nor to settle it with anybody as his father had not abandoned the holding in suit, as the landlord appeared to think. Defendant No. 1, who was the landlord and the settlees-defendants Nos. 2 to 5 pleaded that plaintiff's father abandoned the holding some time in 1932 and went to another village without making any arrangement for the payment of rent. Since, therefore, he abandoned the holding, defendant No. 1, the landlord, took possession of it in 1936, and settled it with the other defendants. The suit was barred by limitation and it was also not cognizable by the Civil Court.

(2.) The trial Court dismissed the suit holding that the plaintiff's father, in fact, had abandoned the iands within the meaning of Section 73, Chota Nagpur Tenancy Act and the landlord was accordingly entitled to come into possession of the lands in his own right. But since no steps were taken by the landlord as required under Section 73 of the Act, the plaintiff could not take advantage of the shorter period of limitation provided for in that section. He held, however, that the settlement, in the circumstances, by the landlord defendant No. 1 in favour of defendants 2 to 5 was legal and valid. He held also that although the plaintiff made out a good case on the score of Section 73 of the Act he could not succeed in the suit as his claim was barred under the general law of limitation. According to the learned Munsif, the case was governed by Article 142 of the Limitation Act under which the plaintiff had to prove his possession within 12 years from the date of the institution of the suit of the property of which he sought recovery of possession. He failed to discharge the onus in the matter as he could not prove the exact date of departure of his father Chamru Chik from village Bunumda, Coming to that conclusion on the point of limitation, the learned Munsif dismissed the suit. The learned Subordinate Judge, who disposed- of the appeal which was filed by the plaintiff, however, came to a contrary conclusion. In his opinion, Article 142 of the Limitation Act was not the proper Article to apply to the facts of the present case but Article 144, which would govern it. It was, therefore, the duty of the defendants to prove adverse possession for a period of 12 years before the plaintiff could be debarred of his right to recover possession of the suit land which, admittedly, was the raiyati holding of his father Chamru Chik. On facts, referring to certain admissions made by the defendants' witnesses, he found that Chamru Chik left the village one year after the final publication of the record-of-rights, which took place in 1933. The plaintiff's father left the village, according to the defendants' evidence, one year after that event, so that it would be sometime in January 1934. He supported this conclusion with reference also to the written statements filed by defendants 1 and 2. He observed as follows :

(3.) The defendants have preferred this appeal against the decision of the learned Subordinate Judge which has been heard ex parte, as Mr. S. K. Sarkar, who filed vakalatnama on behalf of the respondent, stated to the Court that he had no instruction in the matter. Mr. Sudhir Chandra Ghosh in support of the appeal has urged that the present case is governed not by Article 144 of the Limitation Act in any view but by Article 142 of the Act. He has also contended that the two Courts below having found that there was abandonment within the meaning of Section 73, Chotanagpur Tenancy Act, it was not necessary for the landlord to start a proceeding by filing an application before the Deputy Commissioner as contemplated under that section. The abandonment proved is a fact which must be effective as against the plaintiff, and if the landlord takes possession and further makes settlement of the land with a third person such a bona fide settlee must not be disturbed in his possession by the original raiyat. It is no doubt true that in the present case there is a concurrent finding of fact of the Courts below that Chamru Chik, father of the plaintiff, had left the village without making any arrangement for the payment of rent so as to make the landlord competent to re-settle the land under Section 73, Chotanagpur Tenancy Act. The Courts below, however, have differed only with regard to the period of limitation and the particular Article of the Limitation Act applicable to the present case. I have already stated that according to the learned Munsif, Article 142 would apply whereas according to the learned subordinate Judge, Article 144 would apply which would affect the burden of proof as well as the other elements to be proved by the defendants with regard to adverse possession if the case was governed by the latter Article, viz., 144 of the Act. Mr. Ghosh has drawn my attention to certain admissions made by the plaintiff's witnesses themselves which would show that plaintiff's father abandoned the village in fact in 1932. In second appeal, however, I am not prepared to go into facts as the learned Subordinate Judge based his finding upon the evidence on record in the case. It was open to him to consider the. evidence in the light of what was stated on the point by the plaintiff or by the defendants or their witnesses. The learned Subordinate Judge chose to refer to the statement made by the defendants' witnessses, and I must hold that he committed no error of law in relying upon such evidence. I must accordingly hold in agreement with the learned Subordinate Judge that plaintiff's father left the village sometime in January, 1934 and not earlier than that.