SURPAT SINGH AND ORS Vs. SURPAT SINGH AND ORS

JUDGEMENT

(1.) These two appeals arise out of two suits instituted by the same plaintiffs against two sets of defendants for recovery of possession of certain lands on the ground that the defendants were in their wrongful possession and that their names were wrongly recorded in the Survey Records of Rights in respect of them.

(2.) The plaintiffs of the suits are the landlords of the villages where the suit lands are situated. The defendant of one of the suits, Kumar Bhupendra Narayan Singh (who is respondent in Second Appeal No. 821 of 1933) has been recorded in the settlement records as a rent free tenure holder in respect of 125.08 acres of land in village Achra, situated in the area known as Kosi Diara in the District of Purnea. In the other case the defendants (who are respondents in Second Appeal No. 1116 of 1933) have been recorded as milikdar in respect of 14.03 acres of land in village Kusmaul also within Kosi Diara. The plaintiffs instituted these two suits for recovery of possession of these lands on the declaration of their title to them and on a finding that the defendants have not got the status given to them in the Record of Rights. The first suit was instituted before the Subordinate Judge and the second before the Munsif. Both of them were dismissed by the respective trial Courts. The appeal of the plaintiffs in the first suit has been dismissed by the learned District Judge of Purnea and that in the second suit by the learned Subordinate Judge of the same place. The plaintiffs have, therefore preferred these two second appeals. As the appellants are the same and the points of law raised on their behalf are common to both the appeals they have been heard together.

(3.) Strictly speaking, on the findings of the lower Courts, no question of law arises in either of the two appeals. In Second Appeal No. 821 of 1933, the plaintiffs case was that the suit lands were their mal lands and not rent free. They further urged that, assuming that they were rent free tenure of the defendant he lost it by the adverse possession of the plaintiffs. It was alleged by them that the lands were submerged under the Kosi river and that since they came out of the river they had been in their possession through their own tenants. There is a clear finding of the lower appellate Court which is in agreement with that of the trial Court, that the lands are the rent free tenure of the defendant and that the entry in the Record of Rights is correct. It has also been found that after their emerson from the river the lands were for a considerable time unfit for being taken possession of and therefore on the basis of his title the defendant must be held to have continued in possession. Both the Courts have disbelieved that the plaintiffs were in possession of the lands after they came out of the Kosi. Similar is the case in respect of the lands involved in Second Appeal No. 1116 of 1933. The defendant of this suit claimed, as I have said, to be the milikdar of the suit land and was recorded as such in the Record of Rights. The lower appellate Court has found that at least since 1909 he had been holding it as milikdar having in that year purchased it under a sale deed in which it was described as milik. It was also held that the entry in the Record of Rights was not proved to be incorrect by the plaintiffs. The learned advocate for the appellant has contended that the statement in the deed that the land was milik was not admissible in evidence. It is true that the statement is not admissible to prove that the land is the milik of the defendant, but it is admissible to prove that when the defendant came in possession of the land he did so with an assertion that he was holding it as a milikdar, and since then, he began to prescribe against the plaintiffs as milikdar. The suit having been instituted after 12 years of the commencement of that possession, is obviously barred. The only other point urged in this case is that the entry in the Record of Rights is based upon no evidence. No material has been placed before us to support this contention.