Musammat Murti Dussadhin And Others vs Surajdeo Singh And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 625 of 1960

Decision Date: 11 August 1964

Coram: S.M. Sikri, K. Subbarao

In Musammat Murti Dussadhin and Others versus Surajdeo Singh and Others, the Supreme Court of India delivered its judgment on 11 August 1964, with Justice S.M. Sikri authoring the opinion and joined by Justice K. Subbarao. The case was cited as 1965 AIR 875 and 1965 SCR (1) 20, and involved a suit for ejectment filed under the Indian Limitation Act, 1908, specifically Articles 142 and 144. The plaintiff’s title to the land was admitted, but the plaintiff claimed possession only as a tenant, raising the question of whether Article 142 or Article 144 applied. The headnote described that the plaintiff, referred to as “One Mr. M,” instituted suit in the Munsif’s Court against several defendants, seeking a declaration that a particular parcel of land formed his bakshat interest and that he was in continuous possession and occupation of it. In the alternative, the plaintiff prayed for possession on the ground that he might be deemed dispossessed because criminal proceedings under section 144 of the Code of Criminal Procedure had cast doubt on his title. The suit arose after those criminal proceedings concluded with a decision adverse to the plaintiff. The defendants did not deny the plaintiff’s title; instead, they asserted that the plaintiff had transferred the land to them more than twenty‑five years earlier for cultivation on a batai basis, and that they had thereafter enjoyed peaceful cultivating possession and had acquired occupancy rights. The Munsif dismissed the suit, accepting the defendants’ pleas. The plaintiff appealed, and the Appellate Court allowed the appeal, holding that the burden rested on the defendants to establish that they were rayats of the land and possessed occupancy rights, which the defendants failed to prove regarding settlement and possession. The defendants then appealed to the High Court, which, considering the facts and circumstances, ruled that the burden lay on the defendants to demonstrate possession for twelve years or more, and dismissed the appeal. Upon special leave, the Supreme Court held that, on the facts, Article 144, not Article 142, governed the dispute. The Court explained that when a defendant not only acknowledges the plaintiff’s title but also admits that his possession derives from the plaintiff as a tenant, the case must proceed on the defendant’s pleading. For the purpose of deciding the applicability of Article 142 versus Article 144, the Court assumed that the plaintiff had not been dispossessed nor had he discontinued his possession within the meaning of Article 142, since neither party alleged a decision or discontinuation of possession. The Court relied on the authority of Jaldhari v. Rajendra Singh, AIR 1958 Pat 386, and approved the view expressed in The Official Receiver of East Godavari v. Chava Govinda Raju, ILR 1940 Mad 953, and Behari Lal v. Sundar Lal.

In this appeal, the Court observed that the earlier decision in Das reported in I.L.R. (1935) 16 Lab. 442 was distinguished, and the judgments in Kumbham Lakshmanna v. Tangirala Venkateswarlu (1948‑49) L.R. 76 I.A. 202 and Seturatna‑in Aiyar v. Venkatachala Gounden (1919) L.R. 47 I.A. 76 were cited for their relevance. The matter before the Court was Civil Appeal No. 625 of 1960, filed by special leave against the decree dated 17 July 1958 passed by the Patna High Court in appeal from Appellate Decree No. 890 of 1954. Counsel for the appellants were instructed, and counsel for the respondents, who were identified as respondents Nos. 1(a) to 1(k) and 1(m) to 1(r), also appeared. The judgment was delivered by Justice Sikri.

Mohd Mir Khan, the plaintiff, had instituted a suit in the Court of the Munsif at Aurangabad seeking a declaration that eight bighas of land recorded under khata No. 22 in Mauza Gopalpur, District Gaya, formed his bakasht interest. He asserted that he had been in possession and occupation of that land and alternatively prayed that, if the Court were to find that he had been dispossessed under Section 144 of the Criminal Procedure Code, the defendants should be removed and he should be restored to possession, together with a decree for future mesne profits from the date of dispossession until the date of realization. In the plaint he claimed that the said land was listed in the Record of Rights, specifically the Survey Khaitan, as his bakasht land, totaling 9.81 acres, including the eight bighas in question. He further alleged that he had sown seed on two bighas in the month of Asadh 1353, at which time defendants numbered 2, 3 and 5 interfered with his possession, leading to proceedings under Section 144, Criminal Procedure Code, which resulted in a decision adverse to him.

Mr Khan contended that the defence raised by the aforementioned defendants in the Section 144 proceedings—namely that plots numbered 587, 832 and 846 and a portion of 881 had been settled by him and that they were then in possession—was false. He maintained that after the Section 144 proceedings he had cultivated a rabbi crop on the suit land using his own plough and bullocks and remained in actual possession. Nevertheless, because the decision in the Section 144 proceedings cast a cloud over his title, he claimed that he was entitled to have his title and possession confirmed by the Court. The plaintiff’s pleadings, therefore, consistently asserted that he had been and continued to be in possession and possessed title to the land, with the alternative request for possession only if the Court were to deem him dispossessed.

The defendants, in their written statement, did not contest the plaintiff’s title to the suit land but...

It was asserted that the plaintiff, being the sole member of his household, had at one time left his residence to perform some service, and that, as a result, he had transferred the entire area of the lands described in khata number twenty‑two to the defendants for cultivation on a share‑cropping basis more than twenty‑five years earlier. According to this claim, the defendants had since been and continued to be in peaceful, cultivating possession of the same lands and had also acquired occupancy rights therein. The defendants further alleged that they had regularly divided the harvested crops with the plaintiff, although the plaintiff had never issued any receipt acknowledging such division. The Munsif held that the plaintiff had effected a settlement of the lands with the defendants approximately twenty‑eight years ago. Regarding possession, the Munsif found that, from the time of that settlement, the defendants had remained in possession and had been cultivating the lands, whereas the plaintiff had not been in possession at any time after the settlement. Accordingly, the Munsif concluded that because the plaintiff had been out of possession for more than twelve years, he was not entitled to possession, and he dismissed the suit with costs. The plaintiff appealed this decision and was successful before the Appellate Court. The Additional Sub‑Judge expressed the view that the burden was on the defendants to prove that they were raiyats of the lands and that they had acquired occupancy rights in those lands, and that, unless they could discharge this burden, they could not successfully resist the plaintiff’s suit. After examining the evidence, the Additional Sub‑Judge concluded that the defendants had failed to prove their case concerning settlement and possession. Five of the defendants then appealed to the High Court. Before the High Court, counsel for the defendants contended that the Appellate Court had wrongly placed the burden upon the defendants; however, the High Court, relying on Jaldhari v. Rajendra Singh, rejected that contention. The High Court held that the defendants had admitted the plaintiff’s title and that their claim of settlement and possession for twelve years had been rejected by the Appellate Court. It was also noted that the plaintiff had never alleged that he had been dispossessed. The learned judge observed that, because the defendants had not obtained possession and because the plaintiff had never claimed to have been dispossessed, the admission of title by the defendants meant that, on the pleadings, the landlord was deemed to be in possession. Consequently, on the pleadings of the parties, there could be no need to make a formal finding of fact that the plaintiff was in possession, since the plaintiff never claimed ejectment and the defendants never alleged forcible ejection of the plaintiff. In conclusion, the learned judge held that, given the particular facts and circumstances of the case, the burden lay upon the defendants to demonstrate that they had been in possession for twelve years or more.

After the lower court held that the defendants had been in possession for twelve years or more, it dismissed the appeal. The defendants subsequently obtained leave to appeal from this Court, and the appeal now lies before this Court for disposal. Counsel for the appellants argued that the Full Bench judgment, which had been relied upon by the learned Judge, was incorrectly decided and that, on the facts of the present dispute, Article 142 of the Code of Civil Procedure, rather than Article 144, should govern the matter. The Court, however, expressed the view that the Full Bench decision was correct and that Article 144 appropriately applied to the facts of this case. Counsel for the appellant further urged that, in an action for ejectment, the plaintiff is required to establish his title to immediate possession, a proposition on which there was no dispute. Counsel added that when the plaintiff does not concede a tenancy, even though the defendant alleges a tenancy, the plaintiff must demonstrate possession within twelve years of the commencement of the suit. He contended that the defendants had admitted the plaintiff’s title but not his possession. To support this contention, counsel for the appellant, aside from citing Patna decisions that had been overruled by the Full Bench, relied upon the case of The Official Receiver of East Godavari v. Chava Govinda Raju(1) and the case of Behari Lal v. Sundar Das(2). In the former case, an auction purchaser was obstructed by a person claiming ancestral ownership of the property; the purchaser sued for a declaration and an injunction. The Court observed that the facts of that case were quite different and that none of the authorities discussed by the learned Chief Justice involved a defendant who claimed possession under the plaintiff while asserting a right by adverse possession. In Behari Lal v. Sundar Das(2), the headnote recorded that the plaintiffs instituted a suit for possession of a house against N.B. and N.D., alleging that in 1927 they had let the house to N.B., who subsequently sublet it to N.D. The plaint stated that the plaintiffs were the owners and that they had previously sued for recovery of rent against both defendants; N.D. had asserted his own title and the suit against him had been dismissed, while a decree was passed against N.B. The High Court held that the plaintiffs had clearly pleaded both possession and dispossession, namely possession through their tenant N.B. and dispossession by the sub‑tenant N.D., when N.D. set up a title of his own. This case was distinguished because the sub‑tenant had expressly asserted his own title and denied the plaintiff’s title. Another case cited by counsel for the appellant was Kumbham Lakshmanna v. Tangirala Venkateshwarlu(1), in which the Privy Council reviewed most of its earlier decisions on the same point of law. In that case, a holder of a minor inam sued to eject the tenants from the holding, and the Privy Council held that the burden of proof lay on the plaintiff.

The Court explained that the burden of proof rested on the plaintiff to establish a right by demonstrating that the grant covered both the melvaram and kudivaram interests, or that the tenants or their predecessors had been placed in possession by the inamdar through a terminable lease. The Court referred to the case of Seturatnam Aiyar v. Venkatachala Gounden and quoted the observation made on page 224, which stated that in that case it was either admitted or found as a fact that the tenants had been let into possession by the landlord who was the absolute owner. The Court further noted that when a tenant claims rights of occupancy in such circumstances, the burden lies on the tenant to prove those rights, as laid down in Nainapillai Marakayar v. Romanathan Chettiar. The Court then examined whether the same principle applied when the plaintiff did not admit any tenancy but the defendant alleged a tenancy of a permanent nature.

The Court observed that if a defendant not only accepts the plaintiff’s title but also acknowledges that the defendant derived possession from the plaintiff as a tenant, the case must be decided on the defendant’s pleadings. For the purpose of deciding whether Article 142 or Article 144 of the Code applied, the Court assumed that the plaintiff had neither been dispossessed nor had discontinued possession within the meaning of Article 142, because neither party alleged dispossession or discontinuation. By construing the plaint as a whole, the Court found that the plaintiff never claimed dispossession or that he was out of possession; instead, the plaintiff asserted ownership of the suit land and claimed that he was in possession.

The Court noted that the proceedings under Section 144 of the Criminal Procedure Code had raised doubts about the plaintiff’s title, prompting the plaintiff to file a suit for a declaration. The plaintiff also prayed, in the alternative, for a decree of possession and mesne profits, and carefully qualified that he could only be deemed dispossessed by the Section 144 proceedings. The defendants did not deny the plaintiff’s title to the suit land but asserted that they had acquired settlement and occupancy rights, relying on authorities such as the decisions reported in (1948‑49) L.R. 76 I.A. 202, (1919) L.R. 47 I.A. 76, and L.R. 51 I.A. 83. On the basis of these facts, the Court concluded that Article 144, and not Article 142, was the appropriate provision.

Consequently, agreeing with the High Court, the Court held that the suit was not barred by limitation. The appeal therefore failed and was dismissed. However, because the lower courts had not made a finding that the plaintiff was in possession, the Court modified the decree, limiting it to a decree for possession of the disputed land only. The Court ordered that each party bear its own costs. As the Court had resolved the limitation issue, it deemed it unnecessary to address the point of abatement of the appeal that had been raised by counsel for the respondents.

The Court noted that the respondents were parties to the proceedings. It further directed that the appellants would be required to pay the court fees that had been waived when they were permitted to lodge the appeal as indigent litigants. The Court explained that the fee exemption applied only because the appellants had been allowed to proceed as paupers; consequently, the liability for the fees reverted to them now that the procedural posture of the appeal had been resolved. Accordingly, the Court ordered that the appellants discharge the outstanding court costs. In addition, the Court held that the appeal could not be sustained and therefore dismissed the appeal in its entirety. Following the dismissal, the Court altered the operative decree, limiting its effect to the relief that remained appropriate under the circumstances. The modification of the decree reflected the Court’s finding that the original decree needed to be adjusted in light of the dismissal of the appeal and the reinstatement of the fee liability upon the appellants. Thus, the final order required the appellants to pay the court fees, dismissed the appeal, and issued a modified decree consistent with those determinations.