RAMENDRA PROSAD BASU Vs. BARADAPROSAD BASU

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for declaration of title and recovery of possession of a house in Pabna town described in Sch, Ka and a piece of garden land in the town described in Schedule Kha to the plaint. The plaintiff Barada Prosad Bose was a pleader of Pabna District Court; he joined the Bar in 1893. The three defendants are his sons by his first wife Sailabala who died in 1913. The house in dispute stands on a piece of land of which the plaintiff got permanent lease from a landlord client. The lease was in his own name and on the land he built the house in suit in the years 1901-1904. The house was built in the name of his wife Sailabala. Even the bricks were struck with her own initials S. B. and the house being finished was named Sailadham. In the Municipal register, the house stood in her name and in two documents, one a security bond in favour of the District Judge and another an application for a loan to a Bank of which the plaintiff was one of the managers, the house was described as the stridhan property of Sailabala. The plaintiff asserted the same while he stated that the land on which the house stood was his property. The plaintiff's ease is that he got the house benami in the name of his wife Sailabala for fear of his brother Sarada who, he apprehended, might claim the house as joint property. It is true that the house was built at a time when the plaintiff and his brother Sarada were both living in joint mess with their father who was a muktear and his fear was not unfounded inasmuch as afterwards Sarada brought a partition suit against the plaintiff in which he claimed the house as joint property. The defendants resisted the suit on the ground that the house was the stridhan property of their mother Sailabala. The Subordinate Judge has found that the plaintiff had reasons for making the house in the benami of his wife. The defence was that the house was built with the money of the lady which she obtained from her father who lived in Calcutta and was in the service of a broker. We have been taken through the evidence and I am of opinion that the conclusion of the learned Subordinate Judge is correct that the plaintiff constructed the house partly with his own money and partly with some contributions which his wife obtained from her father and he called the house the stridhan property of his wife as he wanted it to be known as his wife's property while really it was his own property. The next question is whether the suit is barred by limitation. On this, the first point is whether Art. 142 or Art. 144, Schedule 1, Lim. Act, applies. Art. 142 applies to a suit for possession of immovable property when the plaintiff while in possession of the property, has been dispossessed or has discontinued the possession. Art. 144 applies to a suit for possession of immovable property or any interest therein not hereby otherwise specially provided for. Now, in the present case, the. plaintiff clearly stated in his plaint that on 28 March 1919 he was assaulted by his bob, defendant 3, and expelled from the house in the middle of the night and he dates his cause of action as arising on 29 March 1919. His case is that after his wife's death in 1913 he held the house in the benami of his sons, the three defendants, but there were quarrels between him and the sons and he was finally driven out of the house on the night of 14 Chaitra corresponding to 28 March 1919. There can therefore be no doubts that in this case, Art. 142 applies, his case being that he was in possession until that date and he was driven out of possession on that date : see the cases of Maharajah Koowur Nitrasur Singh V/s. Nand Lal Singh (1860) 8 MIA 199, Rajah Saheb Prahlad Sein V/s. Maharajah Rajendra Kishor Singh (1869) 12 MIA 292, Beer Chunder Jobraj V/s. Deputy Collector of Bhullooah (1870) 13 WR 23 (PC), and Karan Singh v. Bakar Ali Khan (1881) 9 IA 99. In all these cases their Lordships of the Privy Council held that although the plaintiff's title is proved, the onus is on the plaintiff to show that he was in possession within 12 years of the suit. The onus is not on the defendants to show that the plaintiff lost his title by adverse possession on the part of the defendants. All the oases were discussed in Rakhal Chandra Ghose V/s. Durgadas Samanta AIR 1922 Cal 557.

(2.) The plaintiff said he was expelled from the house on 28 March 1919 and the cause of action arose from the moment when he was driven out of the house. There can be no doubt that in driving out the plaintiff, the defendants asserted their hostile possession. Indeed, as the plaintiff himself says, the house was all along in the name of the three defendants and their case is that from the death of their mother, as heirs of their mother's stridhan property they considered that the title to the house belonged to them and they allowed their father to live in the house with them because he was their father. This fact will appear clear from the conduct of the plaintiff who when the quarrel became violent himself advertised in a local paper named Pabna Hitaishi in no less than seven issues of the paper from 11 December 1918 to 12 February 1919 stating that the house in question was acquired with his own money and he had title and possession in the same, that his sons, the present defendants, were only his benamidars. This notification clearly shows the truth of the defendants case that they had been claiming the title to the house in themselves. There can thus, in no view, be any doubt that Art. 142 applies and the onus is on the plaintiff to show that he was in possession within 12 years of the suit. The suit was instituted on 25 March 1931, about 11 years 11 months and 26 days from the date of the dispossession. When the defendants have admittedly been in adverse possession for over 11 years 11 months, the onus lies heavily on the plaintiff that he was in possession within 12 years of the date of the suit. The learned Subordinate Judge has referred to the oral evidence. In my opinion, the oral evidence of the plaintiff and his witnesses is utterly unworthy of credit. The plaintiff has told innumerable lies in his evidence. He appears to have had no regard for truth in the assertion which he made in his evidence. The learned trial Judge relied mainly on the Panjika where on 14 Chaitra there is an entry that he was shoe-beaten by his son, defendant 3. The learned Subordinate Judge has accepted that entry as correct. We have carefully examined that entry and compared it with the numerous other entries appearing before that date about which there is no dispute of their correct-ness. The Panjika was 14 years old at the time of the suit. All those unchallenged entries previous to the entry in question appear to have their ink turned brown colour in the course of time. The entry in question appears to be made with fresh black ink and it has not yet turned brown with age. On the other hand, it appears that some artificial attempt was made to blur the writing. In my opinion, the entry on 14 Chaitra cannot be accepted as a true entry. Having regard to the general disregard for truth of the plaintiff, I am of opinion that this entry was inserted by him at or about the time when he instituted the suit. No reliance can be placed on it.

(3.) The learned Subordinate Judge has relied mainly on certain admissions in letters written to the plaintiff by defendant 2. (The judgment then considered the letters and proceeded.) From these letters, the learned Subordinate Judge has concluded that the plaintiff left the house on or about 28 March and not in previous October as the defendants had stated. Having carefully gone through the letters and considered the mind of defendant 2 who was at that time very young having lost his mother and wanting to have the affection of the father, I do "think that these letters prove the contentions of the plaintiff that he was at Sailadham until 28 March. As to the threat in the letter of 7 January, it does not show conclusively that the plaintiff was at that time in the house. It may be that the young man hoped that there would again be reconciliation between the sons and the father and the father might gone back and in this foolish way he tried to justify his own part and made a foolish threat to the father. In the letter of 14 April where he says the plaintiff left the house at his own will, in my opinion, the observation is not to be taken as literally true. On the other hand, the plaintiff's story in this respect is to be believed that when he left the house he was violently turned out by his sons. He did not leave it willingly.