DUDH NATH PANDEY Vs. SURESH CHANDRA BHATTASALI

JUDGEMENT

(1.) The dispute between the parties in the present appeal by certificate centers round a piece of land measuring 3 Kathas and 8 Dhurs. The dispute between the parties has a chequered history as the circumstances detailed below will indicate. This land forms, part of plot No. 1448 appertaining to Khata No. 516. It was recorded in the record of rights Puratan Patit Anabad (old uncultivated, Parti land) under the Dhalbhum Raj. Suresh Chandra Bhattasali (since dead) filed a suit for a declaration that the disputed land belonged to him and that the defendant-appellant had no right, title or interest therein. He also claimed a relief of possession after demolition of walls and other structures raised thereon by the defendant-appellant. The case set up by the plaintiff in the plaint is that before 1946 he approached the landlord Dhalbhum Raj for the settlement of the disputed land and after various enquiries, the land was ultimately settled with him on Aug. 23,1949. He was, however, permitted by Dhalbhum Raj to take possession even before the date of actual settlement. To the North-West of the disputed land, there is a piece of land forming part of the same plot which the plaintiff took on rent from the defendant. It is further alleged that on Sept. 29, 1949, the defendant forcibly removed the barbed fencing which had been put by the plaintiff on all sides of the disputed land after having taken the disputed land by settlement from the Dhalbhum Raj and started constructing walls so as to include the disputed land as well as the adjacent land taken on rent by the plaintiff from the defendant in one compound. This conduct of the defendant amounted to dispossession and so the plaintiff was obliged to file the said suit.

(2.) The claim was resisted by the defendant alleging that he was in possession of the disputed land since 1938 when he enclosed the suit land together with the adjacent land into one compound by erecting pucca walls and that in 1946 the plaintiff took the said land on rent from him and was in occupation of the same as a. tenant of the defendant. It is further alleged that the defendant had filed a title suit being Suit No. 137 of 1949 for ejectment of the plaintiff from the suit land and obtained a decree for possession and in execution of the decree the plaintiff was dispossessed on Feb. 2, 1951 and as such the suit is barred by res judicata.

(3.) The trial Court dismissed the suit on the ground that the plaintiff had failed to prove his possession within 12 years of the suit and as such the suit was barred by time. The trial Court, however, overruled the objection based on res judicata inasmuch as the earlier suit was not in respect of the disputed land. It also found that the plaintiff had taken the disputed land from Dhalbhum Raj by virtue of the settlement. Feeling aggrieved, the plaintiff went up in appeal but the Appellate Court dismissed the appeal on the finding that the defendant had acquired title by adverse possession, The plaintiff took up the matter to the High Court in Second Appeal. The High Court allowed the appeal and set aside the judgment of the First Appellate Court holding that in the absence of any plea about adverse possession in the written statement and in the absence of any issue on that question the lower Appellate Court was not justified in recording a finding on the question of adverse possession. The Appellate Court had committed a manifest error of law in dismissing the suit on the basis of title by adverse possession of the defendant. The High Court further found that the Appellate Court had not recorded any definite finding on the question of title of the plaintiff on the basis of settlement from Dhalbhum Raj. In the circumstances, the High Court sent the case back to the Lower Appellate Court for its decision afresh in accordance with law.