PRATAP NARAIN DAS Vs. SRI KRISHNA CHANDRA

JUDGEMENT

(1.) This is an appeal by the defendants against the decision of the third Additional District Judge of Bhagalpur decreeing the plaintiff's suit praying for a declaration that he had acquired proprietary right in mouza Raisri Milik by adverse possession. The Subordinate Judge who tried the suit came to the conclusion that the plaintiff had acquired title over the said village by adverse possession. He, however, dismissed the suit as he was not satisfied that the plaintiff had established that there was any dispute between him and the defendants first party regarding the village in question in February 1942 and consequently no cause of action accrued to him. Several issues were framed before the learned Subordinate Judge amongst which issue 3 was as follows: "Is the suit barred by Section 42, Specific Relief Act"? At the hearing this issue was not pressed and the Subordinate Judge consequently held that this section did not bar the suit. The plaintiff then appealed against the decision of the Subordinate Judge and urged two points before the lower appellate Court. The first point urged was that there had been interference by the defendants first party with the plaintiff's possession over the mauza in February 1942. The second point urged was that even without any proof of such interference the plaintiff was entitled to the relief that he sought for a declaratory decree in the suit. The appellants in this Court were faced with a finding contrary to their case, namely, that the plaintiff had acquired a title by adverse possession and apparently they did not make any submissions before the lower appellate Court against this finding.

(2.) Mr. Jha on behalf of the appellants has strongly contended that under the provisions of Section 42, Specific Relief Act, the suit ought to have been decreed (dismissed) as on the facts alleged by the plaintiff he could not get merely a declaratory decree. He ought to have sought further relief. He relied upon the proviso to Section 42. He further contended that even if in February the appellants interfered with the plaintiff's possession of the mauza that act amounted to dispossession.

(3.) Since no submissions appear to have been made before the lover appellate Court on behalf of the appellants against the finding of the Sub-bordinate Judge regarding the plaintiff Having acquired title by adverse possession, it seems to me somewhat difficult to permit the appellants in second appeal to re-open that question. But even if it were permissible to do so, the Subordinate Judge has given such ample reasons to justify his conclusion that it seems to me it would be sheer waste of time to repeat the grounds given by him. The most significant circumstance, in my judgment, which supports the case of the plaintiff is that ever since the year 1929 to 1942 them is no documentary evidence whatever to prove that the appellants ever collected, as proprietors, rent from the tenants of the village in question. Indeed the defendant 1 as D.W. 1 admitted that the defendants first party never collected rent from the tenants of the mauza in suit.