KALADHARI SINGH Vs. JIBACHH MISHRA

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff. The defendants-respondents are the three sons of Manohar Misra of Barhampur where the subject-matter of the dispute is situated. The disputed property is 1 katha 19 dhurs of land included in plot No. 496 with an area of 3 kathas 4 dhurs. The suit was for a declaration of the plaintiff's title to and for confirmation or, in the alternative, recovery of possession over the disputed land. The Courts below have dismissed the suit of the plaintiff on the ground that the defendants title to the land had matured by adverse possession. The plaintiff has came up in second appeal. Mr. Manuk, appearing on behalf of the appellant, has urged chiefly that on the findings of the Courts below, no case of adverse possession can be made out, and secondly, that they have acted illegally in relying on a piece of evidence which is not admissible. The litigation with regard to this piece of land has a long history and it redounds to the credit of the litigious zeal of the parties that for such a small strip of land they have been engaged in it for nearly 30 years having moved about half a dozen Courts presided over by about a dozen different Judges.

(2.) In order to understand the point raised by Mr. Manuk, it is necessary to give a short statement of the litigation in the past with respect to this land. In the year 1908 three mortgage suits were filed by Brajnandan Singh, the father of the present plaintiff, against Kallar Jha and his bro. thers, based on three bonds executed in the year 1902. These suits were decreed and the plaintiff's father purchased, amongst others, this land in dispute in execution of one of the decrees, the delivery of possession including the entire plot No. 496. It appears that one Nathu Shah, a bataidar of the plaintiff's father, was compelled to file a petition against the defendant's father and defendant 1 under Section 144, Criminal P.C., because they had committed certain acts of aggression with respect to this land. The proceeding was converted into one under Section 145 and ultimately ended against the defendant's father and defendant 1 on 10 September 1910. It is significant that no suit was filed within the period of limitation against this decision of the Criminal Court, and a great deal turns upon this aspect of the whole case.

(3.) It appears that aggression was again started near about the year 1916 on account of which the plaintiff's father had to file a suit against defendants 1 and 2 with regard to the land included in plot No. 496, the disputed portion covering an area of 25 dhurs situated partly towards the north and partly towards the west. The nature of the encroachment complained against was that the defendants had put heaps of cow-dung upon the land. In that suit the defendants contested on the strength of an unregistered kobala of 1901 alleged to have been executed prior to the mortgage deed executed in favour of the plaintiff's father. The suit was dismissed by the trial Court which, in coming to its conclusions, relied upon the results of a local inspection held by the Court itself on 5 August 1917. We have no note of that local inspection on the records of the present case, although the Courts below have relied upon the facts as mentioned in the judgment in the suit of 1916. That judgment is dated 19 February 1918, and the facts taken there, from are that there was a mud wall house on the north, a heap of cow-dung almost like a small hill was stacked towards the south-west of plot No. 496, that the mud had been taken from the middle of the plot (the area is not given but the depth is said to be 1 cubit) and that there was a well in the plot. Of these facts the first two were included in the subject-matter of that dispute while the other two facts were not involved therein.