CHANDRA MOHAN SINGH Vs. BUTU MIAN

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff-respondents for recovery of tnree plots of land in village Kasitaur in the District of Manbhum. Plaintiffs case was that they took settlement of these lands under an unregistered hukumnama from the predecessor of the defendant-landlords some time in the year 1860. They complained that defendant No. 1, the landlord, dispossessed them and settled the land's with the defendants Nos. 2 and 3 On these allegations they sought recovery of possession of the lands. The point for determination was, firstly, whether the hukumnama relied upon by the plaintiffs was genuine and valid, secondly, whether it related to the land in suit, and thirdly, whether the plaintiffs suit was barred by limitation The trial Court held that hukumnama was genuine and that two of the plots, viz., 186 and 188, were" covered by it. Regarding the third plot, it came to the conclusion that its identity with the lands of the hukumnama was not established. It, therefore, decreed the suit in respect of the two plots mentioned above and dismissed it in respect of the third- The plaintiffs remained satisfied with this decree, but the defendants preferred an appeal ,to the District Judge who upheld the decree of the trial Court and dismissed the appeal. The defendants have preferred this second appeal.

(2.) Three points have been urged before me on behalf of the appellants. One is that the finding about the genuineness of the hukumnama is based upon inadmissible documents. The learned District Judge has stated in his judgment that the hukumnama was found to be genuine in some previous suits whose judgments were filed in this case. The learned Advocate contended that these judgments not being inter partes were not admissible to prove the genuineness of the hukumnama. What in fact has happened is this. The defendant contended that the hukumnama was fabricated for the purpose of the suit. The learned District Judge has held that it was not so as it was produced in Courts in several cases previously. On the whole, in my opinion, the plain meaning of the judgment of the learned District Judge is that the hukumnama saw the light of day many years before the controversy arose. There is other evidence relied upon by him for holding that the hukumnama is genuine and there is no substance in this part of the argument of the learned Advocate.

(3.) The second point urged was that, as the learned District Judge was unable to find possession of the plaintiffs over the land in suit within 12 years of its institution he, on the authority of the Full Bench decision of this Court in Shiva Prasad V/s. Hira 6 PLJ 478 : 62 Ind. Cas. 1 : AIR 1921 Pat. 237 : 2 PTL 487, ought to have dismissed the suit. But according to the finding of the learned District Judge the lands are incapable of continuous user. In fact the finding is that they are sometimes cultivated and sometimes not. Therefore, he has applied the presumption that possession must follow title. The case reported in Shiva Prasad V/s. Hira 6 PLJ 478 : 62 Ind. Cas. 1 : AIR 1921 Pat. 237 : 2 PTL 487 was explained by Sir Dawson Miller, 0. J. himself in a later case in Ram Nath Saraugi v. Gobardhan Pandey Pat. 258 : 81 Ind. Cas. 669 : AIR 1924 Pat. 629 : 6 PLT 185 where his Lordship clearly held that though in a suit lor ejectment the plaintiff must prove his possession within 12 years of the suit, the nature of proof will vary according to the nature and circumstances of the land in suit. If the land is of such a nature that it can hardly only be occasionally occupied, then it will be impossible for the plaintiff to prove continuous possession over it and m such a case the presumption of title following possession is available to the plaintiff. I, therefore, overrule this contention also of the learned Advocate.