KUKUR SINGH Vs. BAIJNATH SINGH

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellant for recovery of possession of 2 kathas 3 dhurs of land being Cadastral Survey plot No. 156 and Revisional Survey plot No. 309. This plot admittedly belonged to Mt. Morbansi Kuar (original defendant 2 and now defendant 4). In 1912 during her minority the plaintiff took a sale of some land from her through Parbhu Narain Singh who was her guardian appointed by the District Judge. The sale deed, in the schedule of property conveyed, mentions this plot with its complete description, namely that there were a neem tree and a well standing thereon. It is admitted that this plot does contain a neem tree and a well. Later on at the time of the Revisional Survey which was some time in the year 1920, though other plots covered by the sale deed were recorded in the name of the plaintiff, plot No. 156 was not so recorded, rather it was recorded in the name of Morbansi Kuar. Later on, in 1930, the defendants took a sale from Morbansi Kuar, and in that sale deed also among other lands the plot in dispute is mentioned as having been transferred to them. Thus both the parties claim this plot through defendant 2. The plaintiff relies upon a sale in his favour in the year 1912, while the defendants claim this land through a sale from her in the year 1930. The defendants denied the plaintiff's title and asserted that this plot was not conveyed to the plaintiff by the guardian of Morbansi Kuar. In fact there seems to be some faint suggestion that the mention of this plot in the sale deed of the plaintiff was a later interpolation without the knowledge of the vendor. The simple-question was whether the disputed land was actually sold to the plaintiff in the year 1912 and whether the plaintiff's suit was barred by limitation. Both the Courts below have dismissed the suit and the plaintiff has preferred this second appeal.

(2.) As I have said, it is not disputed that in the list of the properties conveyed to the plaintiff by Morbansi Kuar through her guardian the Cadastral Survey plot No. 156 which is in dispute is clearly mentioned. The learned Subordinate Judge has simply mentioned the suggestion of the defendant that this plot was inserted later on without the knowledge of the vendor. This observation of the learned Judge is based on no evidence whatsoever. A man's title cannot be thrown away on pure suspicion and imagination. The learned advocate for the respondents has contended that the fact that plots Nos. 155 and 156 have been mentioned within one-boundary, while other plots were separately mentioned, shows that there was an interpolation. The reason why plots 155 and 156 have been mentioned together is obvious. The description of the property in the sale deed of the plaintiff is kita by kita. As these two plots are within one boundary and at one place they have been mentioned at one place, but there is the description that it contains a neem tree and a well. There is slight difference in the area but it is immaterial on the face of clear mention of the number of the plot and the description and boundary. I have carefully examined the deed which is in Urdu script (with which I am familiar) and I do not find any sign of interpolation. Be that as it may, the learned Subordinate Judge has not definitely found it to be an interpolation but has simply expressed what was suggested to him on behalf of the defendants. The main ground on which the Courts below have dismissed the suit is one of limitation. They have held that the plaintiff has failed to prove possession within twelve years of the suit. It was suggested on behalf of the plaintiff that as the land was incapable of actual user, the plaintiff can avail himself of the presumption that title follows possession. The point was urged before the learned Subordinate Judge but he has said that as the land contains a neem tree it was capable of exercise of possession. I am unable to understand how one can prove possession of a land which has a neem tree on it. Neem is not a fruit-bearing tree. The use of its leaves is for medicinal purposes and the twigs are used for tooth-brushes. Strangers are generally allowed to take leaves and twigs without restriction by the proprietors of the trees. This also is the case with wells. It is a matter of common knowledge that village wells, except in very exceptional circumstances, are allowed to be used by the villagers without restriction. There is no definite finding of the learned Subordinate Judge that there was a continuous act of possession by Morbansi Kuar or by the defendants which destroyed the plaintiff's title. Therefore in the absence of any evidence to the contrary, the title which was acquired by the plaintiff by the deed must be held to have continued till the interference with his possession as alleged by him.

(3.) There is one fact more which is of importance. It appears that in execution of a decree against Mt. Morbansi Kuar this plot among other plots of land was attached, and the present plaintiff filed a claim under Order 21, Rule 58, Civil P.C. That objection was allowed. This was in the year 1918, six years after the sale in favour of the plaintiff. Now, this release of the property from attachment under orders of the Court though not binding upon Morbansi Kuar so as to bring her within the purview of Order 21, Rule 63 of the Code, inasmuch as it was not an order against her, is certainly an instance in which the plaintiff claimed a right in a case in which Morbansi Kuar was a party as a judgment-debtor, and no doubt the release of the plots covered by the sale deed of 1912 must have been known to her. Taking all the circumstances into consideration in my opinion plaintiff's suit has been wrongly dismissed. I allow the appeal and decree the plaintiff's suit with costs throughout. Leave is asked to appeal under the Letters Patent which is refused.