PARMESHWAR PANDAY Vs. RAMDHARI

JUDGEMENT

(1.) This is an appeal by the plaintiff who in 1927 purchased four acres out of an area of 405 acres recorded in the survey and settlement as the occupancy holding of Harbans, defendant 3. Bikram Rai, father of defendants 1 and 2, had been recorded as the shikmi tenant of the holding, and the suit was brought for an apportionment of the rent payable by the shikmi tenants between the plaintiff as purchaser and defendant 3 as vendor, and for recovery of back rents due to the plaintiff from defendants 1 and 2 by reason of his purchase. The trial Court found that defendants 1 and 2 had a title to the holding independent of defendant 3; that defendant 3 had conveyed nothing to the plaintiff; and that the plaintiff's claim of title through defendant 3 was barred by res judicata and limitation or adverse possession. The suit was accordingly dismissed and an appeal which was heard by a Subordinate Judge failed. It has been urged before me on behalf of the appellant that the decision of the lower Courts is wrong for more than one reason. It is said that in the first place there was an admission by Bikram Rai that he held the land shikmi under defendant 3. which now estops defendants 1. and 2. It is next urged that the Record of Rights, which was finally published in January 1912, supports the claim of the plaintiff, and that the lower Courts have erred in their view of res judicata as regards the ejectment suit of 1915 and the rent suit of 1918. It is also urged that there could be no adverse possession for defendants 1 and 2 to assert until they gave up their possession as shikmidars to defendant 3 as the person who had put their father in possession as shikmi tenant. On the other hand it has been urged on behalf of the respondents that even apart from the question of res judicata, the matter is really concluded by the findings of fact of the Courts below.

(2.) The plaintiff's case was that the holding of 405 acres originally belonged to his ancestors but was put up to sale in execution of a rent decree and purchased by the landlord, the proprietor of the Dumraon estate, who in 1907 settled it with defendant 3 for seven years under a registered patta (Ex. 5), and that it was defendant 3 who brought Bikram Rai, father of defendants 1 and 2, on the land as a shikmi tenant. The story that the land originally belonged to the ancestors of the plaintiff was disbelieved by the trial Court, which pointed out that the rent receipts produced in support of the story were not shown to refer to the land now in dispute, especially on account of the difference in the jama. The Record of Rights showed Bikram Rai as a shikmi tenant in possession for 20 years, and as this was in 1912, it is clear that it clashes with the plaintiff's story that Bikram Rai was brought upon the land by defendant 3 after the patta of 1907. In 1910, while the settlement proceedings were going on, Bikram Rai made a complaint to the Magistrate against defendant 3 and others, in which it was stated that there had been a dispute between the parties regarding a field as to which he had received a parcha. In his examination on that complaint Bikram Rai stated that he was the shikmi tenant of Harbans (defendant 3). Referring to this document, on which much stress has been laid before me, the learned Munsif said that he was not inclined to believe the story of defendant 1, that the Bikram Rai referred to in the plaint "must have been somebody else and not his father." But he observed that it was very difficult to connect the land now in dispute with the field which was the subject matter of the dispute on that occasion, and that further, even supposing that the lands were identical, the admission was not conclusive proof.

(3.) The learned Subordinate Judge who heard the appeal refers to the petition of complaint and Bikram Rai's examination on it, but does not give his own findings nor does he express his dissent in any way from the views of the trial Court. Even if the story of shikmi in the petition of complaint or the examination upon it were to be taken to refer to the shikmi found in the Record of Rights, it is clear as regards the shikmi set up by the plaintiff, namely, a shikmi under defendant 3 after the patta of 1907 from the Dumroan proprietor, that if Bikram Rai's shikmi interest dates from before Harbans's patta, as is shown by the Record of Rights, there can obviously be no estoppel between him or his sons, defendants 1 and 2 and Harbans or his purchaser, the plaintiff, and the contention on behalf of the appellant that the shikmidar could not set up the plea of adverse possession against Harbans or his purchaser until he gave up his possession as shikmidar, which was rested, before me, on Bilas Kunwar V/s. Desraj Ranjit Singh AIR 1915 PC 96, would be (unfounded. Bikram would on that footing have been inducted upon the land not by Harbans, but by the original tenants who were sold out by the landlord before 1907; and it would not be necessary for him to give up possession to the new raiyat of 1907, Harbans, before setting up adverse possession against him.