BAIKUNTHA NATH DAS Vs. SHEIK AZIDULLA

JUDGEMENT

(1.) THESE are four appeal from a judgment and decree of my learned brother Roy, J., sitting on second appeal. The plaintiff on 3 December 1921 brought a number of suits asking for ejectment of the several defendants in respect of 8 annas share from certain plots. Five of the suits were decreed and from that appeals were taken by the several defendants to the lower appellate Court who dismissed the appeals. In this Court Roy, J., remanded the cases to the lower appellate Court with a direction that that Court should allow the parties an opportunity to produce further evidence on certain points and should rehear the cases. It appears that the plots in question belonged in equal shares to two taluks one of which is numbered 54720. This taluk was sold to one Prokas Chandra Shaha on 22 September, 1909 for default of payment of revenue under the Assam Land and Revenue Regulations (Regn. 1 of 1886). The 60 day after that date was 21 November 1909. But the sale certificat dated 6 January 1910, states that the sale was confirmed on 3 December 1909 that is, exactly within 12 years from the date of the institution of these suits. The auction-purchaser Prokas some three years afterwards sold to certain other defendants or their predecessors-in-title who in 1913 gave patni of some plots including the plots in suit to one Dianut Earn Saha who sold the patni to the plaintiff. The plaintiff claimed by his plaint that the various defendants were setting up fictitious titles. It appears, however, that certain previous owners of the taluk had granted several patnis and five of these patnis were set up by the defendants in the suits the defendants cases being that they were in occupation of the plots from which it was sought to evict them under valid patnis. It appears that these defendants refused to apply for a local investigation and the first Court held that in the absence of local investigation and in the absence of any effective evidence there is nothing to show the boundaries of their patnis. It was not proved that the defendants alleged patnis covered the suit lands. This was the conclusion come to in the suits which the first Court decreed. In the other suits and as regards any other lands than the land for which the decree was passed the first Court on the finding that certain patnis set up by the defendants did cover the suit lands, dismissed the plaintiffs suit. It is not evident to me that the plaintiff can be supposed to have desired in this suit brought in 1921 to set aside or annul any encumbrance under the sale 12 years before. The first Court entertained no such case and acted upon no such assumption and finding that the defendants patni in certain cases covered the suit lands dismissed the plaintiffs suit.

(2.) ONE of the defences set up in the trial Court was the defence of limitation and that was dealt with on the basis of the sale-certificate; the learned Mtinsif finding that 3 December 1909 was given as the date when the sale became conclusive adopted that date. He did not deal with the difficulties which undoubtedly arise under the regulation by Section 80 under which a revenue sale is final if no application has been preferred to set aside the sale on the 60 day from the date of sale. 4. From that decree an appeal was taken by the defendants in the present ease and from the grounds of appeal it would appear that the plea of limitation was again raised by the defendants. At the hearing of the appeal it would clearly appear from the judgment that the plaintiffs title as purchaser was not contested but that the appellants asked that the case should be remanded for a local investigation upon the question of boundary. The learned Subordinate Judge rightly held that this prayer came too late and he dismissed the appeals having, dealt only with this question of local investigation. 5. Upon second appeal to this High Court two grounds appear to have been taken. ONE was the question of limitation which had not been argued in the lower appellate Court. New, as to that it is clear enough that if from the plaintiff's own case or from his pleadings or from the admitted or proved facts it could be seen that the plaintiff's suits were statute barred, it would be the duty of the Court in second appeal to entertain even for the first time the question of limitation; but it is tolerably obvious that it would be in ordinary circumstances entirely wrong upon a suggestion that further investigation would disclose facts which would show that the plaintiff is time barred to grant a remand upon this ground in second appeal. Now the point which is taken in this High Court was that on the admitted dates the sale became final on 21 November 1909 and that accordingly the plaintiff's suit was time barred. If that be the only question then it does seem to me on the authority of Jitendra Kumar Pal V/s. Mohendra Chandra [1916] 24 C.L.J. 62, that the statement in the sale-certificate would not be final and conclusive for the present purpose; and on that basis the only question to consider is whether pr not there was some reason to suppose that there had been an application to set aside the sale which extended the time under Section 80, of the Regulation. It appeared however, on this point being taken for the first time in second appeal that there is in evidence the circumstance that symbolical delivery of possession was given to Prokas the auction purchaser, on 19 January 1910 and it is reasonably clear en the doctrine of the case of Mohim Chandra V/s. Pyari Lal Das [1917] 44 Cal. 412, that that would be a good answer so far as the auction-purchaser was concerned against any defaulting proprietor. 6. Now the learned Judge has rejected the contention that this is a good answer against the defaulting proprietors but he has done so on the ground that in the present case Prokash has been held to be in some extent, at all events, a benamidar for one. Dianat Ram Sarma who was himself one of the defaulting proprietors; and he has apparently held that the doctrine in the case cited above does not apply except where the purchaser is a stranger. On that ground he has apparently rejected the date of delivery of symbolical possession as a material date in this case. This introduces the second point taken by the learned Judge as a good point against the plaintiff. On the footing that Prokas when he purchased was a benamidar for one of the defaulting proprietors the learned Judge appears to have held that a defaulting proprietor purchasing at a revenue sale although he paid the full purchase money remains still a cosharer with his previous co-sharers the other defaulting proprietors. He appears to have held that, that being so, he merely stands in this position that he can only bring a suit for partition as against them. This point, however, was not defended or maintained by Mr. Sen in this Court. I do not understand that there is any doctrine which prevents a defaulting proprietor being a purchaser at a revenue sale and this is not a case where it has been found against the plaintiff that the default and the sale were fraudulently procured by one defaulting proprietor so that when he purchased, the law in view of his fraud, would regard him as a trustee of all his previous co-owners. 7. The first question to be decided is the question of limitation. On that question it appears to me on the facts of this case that Art. 121, Lim. Act, has nothing to do with the matter. This is not a suit to annul incumbrances and so far as the particular cases which were decreed are concerned they were decreed upon the basis that the suit lands were not shown to be comprised in any of the patnis set up by the defendants, That being so the question is a question either under Art. 142 or 144; probably if the ruling of Mohim Chandra Choudhury's case [1917] 44 Cal. 412 be right Art. 142. In each of these four cases now before us the persons whose eviction is sought that is, the contesting defendants, were themselves defaulting proprietors. If that be so the symbolical possession as against them is, in my opinion, equivalent to actual possession and the plaintiff's suit having been brought within 12 years of that date was brought in time. 8. There remains only one other argument which the learned advocate for the respondent raises and that is this. He contends that although the contesting defendants were defaulting proprietors and although they have been found to have no patni right in the suit lands nevertheless they may at the time of delivery of the symbolical possession have been in occupation of the suit lands not qua proprietors but claiming right under the one or other of their patnis and that in that state of affairs symbolical possession would not avail as against them to save the plaintiffs suit. I have great difficulty in seeing how the law involved in this contention can be right. But it is quite clear that this is a case which was not proved and not, I think, imagined at the time the suit was tried. It is a new and speculative case never advanced before, and it is quite wrong, in my opinion, in second appeal where the point was not taken in the lower Court to allow an investigation of a case so very different from anything that was dealt with at the time. In my judgment it would be entirely wrong to interfere with the findings of the Courts below in a case of this character. 9. Upon the question whether or not Prokas Chandra Saha should have been held to be a benamidar for Dianat Ram Shaha I can only say that if that question were open to me I should find singularly little evidence but in my view of the law this element makes no difference whatever in the present cases. 10. In the circumstances it seems to me that these Letters Patent appeals should be allowed with costs, the decrees of the learned Judge should be set aside and the second appeals to this Court should be dismissed with costs in each case. C.C. Ghose, J. 11. I agree.