JASWANT SINGH Vs. DHANNA
LAWS(RAJ)-1967-12-11
HIGH COURT OF RAJASTHAN
Decided on December 08,1967

JASWANT SINGH Appellant
VERSUS
DHANNA Respondents

JUDGEMENT

- (1.) THE appellant Jaswant Singh who was defendant No. 5 in the suit filed by Dhanna respondent was the Jagirdar of the fields covered under Bera Partalia consisting of two Dhanas. This land was in the Bapi of the respondent Dhanna and he was in possession as a Bapidar from time immemorial upto the year 2003. In 2004 it is alleged that Geegla, Ghisiya, Chunia Dhaniya and Bhagiya forcibly dispossessed him and till 2010, Kana, Kanhiya, Amra, Hemla, Geegala, Girdhari, Ghisiya, Jetha Hema etc. on their behalf remained in unlawful possession. THE aforesaid defendants No. 1 to 4 took unlawful possession, defendant No. 5 who is appellant Jaswant Singh before us, is colluding with them and is preventing him from taking possession of his Land. He prayed for ejectment of these trespassers under sec. 183 of the Rajasthan Tenancy Act. THE suit was filed on the 1st of February, 1956. THE case of the appellant-defendant was that the Bapi rights of the piaintiff were purchased in Smt. 2002 for Rs. 300/-by Jaswant Singh appellant from the Boharas. THE plaintiff had, therefore, no right on the land in dispute.
(2.) IT is a common ground that when the Marwar Tenancy Act came into force the remedy was available to the plaintiff. The only question for determination in this respect would be whether in such a case sec. 94 or sec, 97 was applicable. The plaint nowhere has stated that the plaintiff-respondent Dhanna was dispossessed by his landlord without lawful authority. His trespassers were persons other than the landlord. In this case it was sec. 94 of the Marwar Tenancy Act which was applicable and as under sec. 124 of the Marwar Tenancy Act read with item 13 of the second Schedule, a suit could be brought for the ejectment of a person occupying land without lawful authority in ejectment or for damages within six years, the suit was within six years, the suit was within limitation when the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act came into force. In a case of a rank trespasser, item 12 of the Revenue Courts (Procedure and Jurisdiction) Act would apply and the period of limitation would be 12 years. The provision of the Indian Limitation Act would not apply to any suits or applications under the Rajasthan Tenancy Act if they have been provided in the III Schedule of the Act. For these reasons, the provisions of sec. 47 of the Limitation Act would not apply in this case as the Rajasthan Tenancy Act had already prescribed period of 12 years under sec. 183 in the III Schedule. The main question for determination is whether this transaction has validly transferred the Bapidari rights purchased by the father of the respondent to Boharas. When both the trial and the first appellate courts have not given any presumption of truth to the documents Bx. D. 3 and D. 4, we, in second appeal, are certainly not competent to give presumption of genuineness to this document. We, on the other hand, think that there are certain factors in this case which will cast doubt on raising presumption of genuineness to this document under sec. 90 of the Indian Evidence Act. In the first place, the document is not signed or thumb marked by the alleged executant, the mother of the respondent Dhanna. Secondly, the only attesting witness they could find in whole of the village was Rajmal Bohara, one of the vendees. Thirdly, no consideration for the alleged sale has been indicated. Fourthly the executant namely, the mother of the respondent Dhanna, does not say that she was executing the document on behalf of her son in case of legal necessity. The document does not show that the mother was transferring the entire movable and immovable property of her minor son in her capacity as natural guardian of the minor. No legal necessity is mentioned. All that is stated is that the antecedent debts had to be discharged. There is no compulsion at the time for discharging the antecedent debts. Under these circumstances we are not prepared to hold that this alleged transfer by the mother was for any legal necessity. Dhanpat Raj and Kishanlal, counsel for Appellants; Joharilal and Mangilal, counsel for Respondents This order in second appeal against the decision of the Revenue Appellate Authority, Bikaner dated 11th of July, 1963 will dispose of two appeals No. 8/1963 and 10/1963 as they are against the same order and the facts involved in both of them are substantially the same. The appellant Jaswantsingh who was defendant No. 5 in the suit filed by Dhanna respondent was the Jagirdar of the fields covered under Bera Partalia consisting of two Dhanas. This land was in the Bapi of the respondent Dhanna and he was in possession as a Bapidar from time immemorial upto the year 2003. ; In 2004 it is alleged that Geegla, Ghisiya, Chunia, Dhania & Bhagiya forcibly dispossessed him and till 2010, Kana, Kanhiya, Amra, Hernia, Geegla, Girdhari, Ghisiya, Jetha, Hema etc. on their behalf remained in unlawful possession. The aforesaid defendants No. 1 to 4 took unlawful possession, defendant No. 5 who is appellant Jaswantsingh before us, is colluding with them and is preventing him from taking possession of his land. He was in possession of Kachha farm house built on the well, but the defendants are not allowing him to retain possession of the field. He prayed ejectment of these trespassers under sec. 183 of the Rajasthan Tenancy Act. The suit was filed on the 1st of February, 1956. The case of the appellant-defendant was that the Bapi rights of the plaintiff were purchased in Smt. 2002 for Rs. 300/- by Jaswantsingh appellant from the Boharas. Bhopalsingh appellant was his son. The plaintiff had, therefore, no right on the land in dispute. The other allegations were also denied. In reply to the written statement, it was urged that field No. 50, 60 and 120 are the only land in dispute. Fields No. 121 and 122 mentioned in the written statement have nothing to do. In a suit for declaration and permanent injunction filed by Jaswant Singh appellant, his allegation was that as he was in possession of the fields and the well having purchased the Bapidari rights, the defendant Dhanna was illegally occupying the parawa. He wanted a declaration that the parawa should be declared as his property and he should be prevented from entering into the same, and the defendants should be prevented from cultivating land from the well without his permission.) The suit filed by Dhanna (appeal No. 8/1 63) was dismissed by the trial court. The decision, however, was reversed in appeal. The suit filed by Jaswant Singh-appellant was dismissed both in the trial court and by the Revenue Appellate Authority. Jaswantsingh, appellant has come in second appeal before us in both these cases. We have heard lengthy arguments in the suit filed by Dhanna. The learned counsel for the appellant-Jaswant Singh attacked the judgment of the Revenue Appellate Authority on a number of grounds. In the first place he urged that the suit was not maintainable as it was barred by limitation. According to the statement of Dhanna himself, he was dispossessed in Smt. 2004 i. e. some time in the year 1947 and in accordance with the then prevalent law, namely Rules for establishment of Revenue Courts in Marwar, 1924, the limitation was only three years, though the remedy was alive when the Marwar Tenancy Act, 1949 came into force. , yet in this case sec. 97 of the Act applied and the period of limitation was only three years. On the other hand it was urged by the learned counsel for the respondent that sec. 94 of the Marwar Tenancy Act was applicable and the period of limitation in that Act was six years. When the Revenue Courts (Procedure & Jurisdiction) Act came into force, item 10 of the First Schedule applied in this case which gave it a period of 12 years. The suit was brought in 1956 after coming into force of the Rajasthan Tenancy Act and the remedy was available also both under the Rajasthan Tenancy Act which also gives a period of 12 years in such a case. It is a common ground that when the Marwar Tenancy Act came into force the remedy was available to the plaintiff. The only question for determination in this respect would be whether in such a case sec. 94 or sec. 97 was applicable. Sec. 94 of the Marwar Tenancy Act, 1949 begins with ejectment of a person occupying land without title, whereas sec. 97 provides remedies for wrongful ejectment of a tenant ejected or prevented from obtaining the possession of his holding, or any part thereof otherwise than in accordance with the provisions of the law for the time being in force by (a) his landlord or any person claiming as landlord to have a right of ejecting him. , or (b) any person admitted to or allowed to retain possession of the holding by such landlord or person, whether as tenant or otherwise, by suit grant the person so ejecting him or keeping him out of possession. Sec. 94 deals with rank trespassers, whereas sec. 97 deals with ejectment by landlord without lawful authority and can be said to be analogous to sec. 187 of Rajasthan Tenancy Act It is a settled principle of law that limitation or jurisdiction in a suit has to be determined by the contents of the plaint. The plaint nowhere has stated that the plaintiff-respondent Dhanna was dispossessed by his landlord without authority. His trespassers were persons other than the landlord. Even the land-lord does not admit that he had ever dispossessed him in that capacity. According to the case of the appellant himself he had purchased the Bapidari-rights from the Boharas. The dispossession of the plaintiff-respondent would be of a Bapidar who had stepped into the shoes of the plaintiff by means of a sale-deed, the validity of which, the plaintiff does not recognise. It cannot be said on any ground that this was a dispossession by a landlord or by any person holding from him. We are, therefore, satisfied that in this case it was sec. 94 of the Marwar Tenancy Act which was applicable and as under sec. 124 of the Marwar Tenancy Act read with item 13 of the second Schedule, a suit could be brought for the ejectment of a person occupying land without lawful authority in ejectment or for damages within six years, the suit was within limitation when the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act came into force and as has been held by the Rajasthan High Court in a case of a rank trespasser, item 12 of the Revenue Courts (Procedure and Jurisdiction) Act would apply and the period of limitation would be 12 years. From another point of view, the present suit by Dhanna cannot be said to be time barred. According to the plaint, Dhanna was dispossessed in 2004 by persons who are no longer on the land. The present defendants took unlawful possession of the land in 2010. His cause of action arose only when the present defendants came on the land and not when others who were no longer in possession of the land dispossessed him. The learned counsel for the appellant further argued that his client was put in possession on the 7th of December, 1950 in criminal proceedings under sec. 145 of the Rajasthan Criminal Procedure Code. The suit for possession in such a case has to be brought under sec 47 of the Limitation Act within a period of three years which had expired, in 1956 when the suit was brought. He relied on the authority of the 1956 S. C. page 605 for this proposition. We have carefully considered this argument, but we do not think that it will be tenable in view of the law existing in the State. Sec. 214 (1) of the Rajasthan Tenancy Act prescribes the period for limitation for suits and applications, specified in the III Schedule, and it is under this Section that Schedule III provides 12 years as the limitation period in a case under sec. 183 of the Rajasthan Tenancy Act. Sab-sec. 3 sec. 214 lays down that subject to the provisions contained in sub-secs. (1) and (2) the provisions of the Indian Limitation Act, 1908 (Central Act No. IX of 1908) shall apply to suits, appeals. In other words the provisions of the Indian Act would not apply to any suits or applications under the Rajasthan Tenancy Act if they have been provided in the III Schedule of the Act. For these reasons. , the provisions of sec. 47 of the Limitation Act would not apply in this case as the Rajasthan Tenancy Act had already prescribed period of 12 years under sec. 183 in the III Schedule. As has been held in ILR Rajasthan page 614 (Pratap Singh versus Madho Sunar) that a Magistrate's order under sec. 145 of Cr. P. C. does not change the nature of the possession of a trespasser and a party approaching a civil or revenue court may still contend that the opposite party had taken or retained possession of the disputed property without lawful authority and thus trespassed on the plaintiff's property. Supreme Court's case (AIR 1966 S. C. 605) relates to U. P. Tenancy Act and presumably applies to suits and applications under that Act. The main case as has been rightly stressed by the learned counsel for the appellant hinged on the decision of Issue No. 1, whether the plaintiff was Bapidar Khatedar of North Dhana of the well Rawala Partalia comprising of Khasra No. 50, 60 and 120. It is an admitted ground that the Thikana issued a patta in favour of Dhana' father on Maghsudi 1, 1991. The contention of Bhopalsingh and others is that after the death of Dhanna's father, Dhanna's mother on Ashoj Badi 6,1995 put the land and all her households in Barda of her creditors Nathmal Shivraj as appear from the transcription made on the patta. It is also admitted that Dhanna was then a minor. It may be stated that no consideration is mentioned for disposing of not only the land, but all household effects by the mother. It is also not clear whether this Barda was a mortgage or a sale though it is the contention of the appellants that it amounted to sale. The appellant's case further is that he paid Rs. 300/- to Bohara Mishrilal to whom the patta has been passed in 2007 and obtained the same in his favour. It is, thus, admitted position that in Ashoj Badi 6, 1995 Dhanna was a minor when his mother is alleged to have sold of all her interests in satisfaction of the antecedent debts vide Ex. D. 4 which is a copy of the alleged Barda (disposal of all interests by sale) in favour of the Boharas, recorded in their Bahi. This transaction is also recorded on the back of Ex. D. 3 which the patta granted to the father of the respondent. The main question for determination is whether this transaction has validly transferred the Bapidari rights purchased by the father of the respondent to Boharas. So far as Jaswant Singh-appellant is concerned, he cannot have any rights on this land better than those possessed by Bohras. The first point to be considered in this case, is whether Ex D. 4 can be said to have been proved or not. The learned counsel for the appellant depended on the Sec. 90 of the Evidence Act urging that the document was 30 years old when it was produced; and it should be presumed to have been properly executed and attested. The learned counsel for the respondent that when the appellant Jaswant Singh filed the suit, the document was not 30 years old. It is, however, not from the date of the filing of the suit, but from the date when the document is produced that period of 30 years is to be reckoned, as laid down in RLW 1955 p. 549 (Daluram vs. Rame-shwar ). The law about raising of presumption having been properly executed and attested is laid down in the same ruling, where their Lordships have observed that "it is within the discretion of the first court to presume a document more than thirty years old to be genuine or not and this discretion can be interfered with only when it has been arbitrarily or capriciously exercised. Where the first court did not exercise its discretion in such a way, the appellate court will not be justified in excluding the document from evidence. " In Shrichand vs. Inder Singh (RRd 1959 page 67) it was again observed by the Board of Revenue that sec. 90 is discretionary and the court is not bound to raise this presumption. Discretion must be exercised judicially and not arbitrarily. It is true that great care is required in applying the presumption, but it is equally true that where documents are coming properly from the proper custody, this presumption should be raised, otherwise a great injustice is perpetrated. "
(3.) WE find from the judgment of the trial court that he has not given any presumption of genuineness to this document. On the other hand, he has relied on the evidence of some of the witnesses to show that its execution had been proved. This aspect of the matter we shall examine later. The appellate court has not also relied on this document and has held it to be fictitious. When both the trial and the first appellate courts have not given any presumption of truth to the documents Ex. D. 3 and D. 4 we, in second appeal, are certainly not competent to give presumption of genuineness to this document, according to the rule laid down in the authorities mentioned above. WE, on the other hand, think that there are certain factors in this case which will cast doubt on raising presumption of genuineness to this document under Sec. 90 of the Indian Evidence Act. In the first place, the document is not signed or thumb marked by the alleged executant, the mother of the respondent Dhanna. Secondly, the only attesting witness they could find in whole of the village was Rajmal Bohara, one of the vendees. Thirdly, no consideration for the alleged sale has been indicated. Fourthly the executant namely, the mother of the respondent Dhanna does not say that she was executing the document on behalf of her son in a case of legal necessity. The only point in favour of the appellant in this case is that the document was produced from the custody of the appellant who took it from the Boharas. In the peculiar circumstances of this case, we do not think any importance can be attached to the production of this document from the custody of the appellant. A poor widow could not stand the pressure of Boharas of the village and the Jagirdar and had to part with the possession of the document; and once the document was in possession of Boharas, any entry could be made on the back of it and in their favour, especially when no thumb impression or signature of the executant appears on the document. We do not think that the document can be said to have been independently proved as has been held by the trial court. The only evidence in favour of its proof is that of Mishrilal, D. W. 9. Under Sec. 67 of the Indian Evidence Act, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. This Mishrilal says that he did not live in village Pipaliya but he lived in Disawar. In Smt: 1975 he was 8-10 years old. His grandfather used to tell him about the execution of this document. Signatures of the attesting witnesses also cannot be said to be proved. Neither Jiwanmal nor Mishrilal could identify the signatures on the document. Moreover both of them were interested witnesses. Surely if the appellants wanted to independently prove the execution of this document, they should have done so in accordance with the provision of Sec. 67 of the Indian Evidence Act. Even if this document be held as genuine, it cannot create a transfer of any rights. The Marwar Registration Act came into force in the Smt. year 1899. The consideration in this transaction was more than Rs. 100/- as even according to the Bapi patta granted by the Jagirdar to the father of the respondent, he had sold the land in dispute for Rs. 300/ -. It was compulsory registrable and unregistered deed of sale which is compulsory registrable, but which is not registered, cannot transfer or create any rights. No doubt, under Sec. 49 of the Indian Registration Act, 1908, it can be used for collateral purposes to show the nature of possession of the defendants. The defendants, however, in this case were not put in possession of the land in dispute, under this document; this possession must be transferred under the document. (C. F. Laxmi Narayan and other vs. Kalyan and others 9 I. L. R. Rajasthan, 1959 p. 1121) An important fact in this case was, whether the Boharas were originally put in possession as a result of this sale. We have seen the evidence carefully and we do not find any reliable deposition on record to prove that the Boharas were put in possession as a result of this sale. The defendants-appellants cannot, in this case, take the plea of the use of this document even for collateral purposes. Even if it be assumed that the Boharas were put in possession, the possession of the Boharas should be in law a valid possession. In other words, apart from registration, the document itself was capable of transferring the rights it purports to do. In this case, as we have seen above, after the death of Dhanna's father who was a Bapibar patta holder, his rights devolved on his minor son. His mother was acting only in the capacity of a natural guardian; and could she transfer the entire interests of her son in clearing of the antecedent debts? The law as laid down in Mulla's Hindu Law in para 528 of the 13th Edition is that "the natural guardian of a Hindu minor has power in the management of his estate, to mortgage or sell any part thereof in a case of necessity or for the benefit of the estate (s ). If the alienee does not prove any legal necessity or that he made reasonable enquiries, the sale is not valid. Sub-para (3) of para 529 further says that "no act done by a person who is the guardian of a minor binds the minor, unless the act was done by him in his capacity of a guardian. It is a question of fact in each case whether a particular act done by a person was done by him in his capacity as a guardian or on his own behalf and on his own account. In the former case, the act binds the minor, provided it was otherwise within the powers of the guardian, in the latter case, it does not. The mere fact that the name of the minor is not mentioned in a contract, or in a deed of sale or mortgage, is not conclusive proof that the transaction was not entered into on behalf of the minor. In each, case, the language of the document and the circumstances in which it was executed must be considered. " We have seen in the instant case, the document (copy of Ex. D. 4) does not show that the mother was transferring the entire movable or immovable property of her minor son in her capacity as natural guardian of the minor. No legal necessity is mentioned. All that is stated is that the antecedent debts had to be discharged. There is no compulsion at the time for discharging the antecedent debts. Even the signature of the mother or her thumb impression does not appear on the document. Under these circumstances we are not prepared to hold that this alleged transfer by the mother was for any legal necessity. ;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.