Anangamanjari Chowdhrani v. Tripura Soondari Chowdharani
BS649439
PRIVY COUNCIL
Before:-Lord Watson, Lord Fitzgerald and Sir Barnes Peacock.
0 D/d. 10/
11.03.1887
Anangamanjari Chowdhrani - Plaintiffs
Versus
Tripura Soondari Chowdharani - Defendants
On Appeal From the High Court in Bengal.
Solicitors for the Appellants :- T.L. Wilson & Co.
Solicitors for the Appellants :- Watkins & Lattey.
Evidence - Issue as to Identity of Land re-formed - Possession - Prescription.
[Para ]
Upon an issue whether certain chur land was a re-formation on the Plaintiffs' land or on the Defendants', evidence was given tending to prove possession thereof by the PLaintiffs for a considerable period prior to their ouster by the Defendants.
The first Court found this issue of identity in favour of the Plaintiffs; the second held that the Plaintiffs for a considerable period prior to their ouster by the Defendants.
The first Court found this issue of identity in favour of the Plaintiffs; the second held that the Plaintiffs had shewn a title by adverse possession; the High Court remanded the case for a decision by the second Court on the issue of identity.
On remand the second Court affirmed the finding of the first. In special appeal the High Court held there was no evidence on which such finding could be arrived at, on the ground that evidence of subsequent possession was not receivable as evidence of previous identity :-
Held, that this was error, possession being established for a period of years, presumitur retro.
Appeal from a decree of the High Court (April 3, 1882), reversing a decree of the District Judge of Putna (April 12, 1881), and dismissing the suit of the Appellants.
The facts are stated in the judgment of their Lordships.
The grounds upon which the case was remanded, as therein stated, by the High Court, appear in the judgment of the 20th of March, 1880 (Morris and Prinsep, JJ.), the material passage in which is as follows :-
"It is urged that the PLaintiffs never claimed the lands in suit be reason of adverse possession for upwards of twelve years. What they claimed was, as defined in the issue, whether the lands in suit were a re-formation on the site of lands originally demarcated as appertaining to their an the pro form Defendants 13½ annas separate share. It was not their case that they occupied and held the lands in suit for so long as time as to create a title by prescription, but that the lands formed a portion of their original estate, and that they had been dispossessed from them by the Defendants, in the year 1873.
"It is further contended that the Judge has not formed an independent opinion on the evidence in the case, but has erroneously allowed himself to be guided by the Judgment of the Lower Court upon it, and has thereby abidicated his functions as Appellate Court; also that although the Judge adopted the conclusion arrived at by the Lower Court, yet, as appears from the 10th paragraph of his judgment, he by no means concurs in the estimate which the first Court forms of the evidence of the witnesses of either side. On the contrary, the Judge expresses a decided opinion that on both sides the witnesses have given false evidence, and that the doubt in his mind is `on which side the bulk of the lying has taken place.' It is in consequence of this doubt that, following what appears to him to be the principle laid don in the case of Shetabdee Biswas v. Molamdee Mundul, 25 Suth. W.R. 30, he declares himself justified in following the decision of a properly constituted Court, whose decision is not shwen to him to be erroneous.
"It seems to us that there is much force in both of these contentions. The Plaintiffs never laid claim to the land by right of prescription, nor was it their case, as the Judge puts it, that they occupied the land in suit as a re-formation of a diluviated portion of their 13½ annas land, and that for a sufficient length of time to confer title upon them, even supposing that before diluviation the lnds of the 2½ annas demarcation. It is apparent that the Judge has no definite opinion of his own as to whether the lands in suit originally appertained to the 13½ annas share or to the 2½ annas share, and which party has the best title in them. What he is willing to decide, and that not upon his own independent judgment on the evidence, is, that whether the lands in suit originally fell within the 2½ annas share of the Defendants or not, they have as a re-formation on their old site been so long in the possession of the Plaintiffs as to confer upon them a title by prescription. This, however, was not the issue which he was called upon to decide, and we agree in the argument that has been addressed to us, which is in conformity with the principle laid down in the case of Shiro Kumari Debi v. Govind Shaw Tanti, Ind. L.R. Calc. 418, that no party can claim a title and fails to prove it, fall back upon a totally different title to that which he originally set up. Moreover, we are not satisfied with the manner in which the Judge has dealt with the evidence. If the Judge cannot agree with the first Court in believing the witnesses of the Plaintiffs to be the witnesses of truth, he is not justified in accepting the conclusion of that Court, because he has, as he says, spent many weary hours over the written record of evidence, vainly trying to find some point in it which would enable him to form a clear opinion of his own as to where the truth lies. It is incumbent on him as an Appellate Court to form an independent judgment on the evidence, and not to give a decree in favour of the Plaintiffs unless he is satisfied that they have established their case."
And the grounds upon which the High Court (White and Macpherson, JJ.), after the decision upon remand, finally dismissed the suit were as follows :-
"We have nothing to do here with the question whether this remand order was right or wrong, or whether, it this second appeal had, when it first came before this Court, been heard by us, we should have made a remand order in similar terms, or should have thought the case a proper one for a remand. The remand order has been made. We have simply to construe it and to see that due effect is given to it. We think that what the High Court meant in remanding the suit was that it should be retried with reference to the third issue, and that the Plaintiffs should be precluded from relying upon a title acquired by prior adverse possession. The obligation was thus thrown upon the Plaintiffs of proving that the chur was re-formation on the site of land which, upon the division mentioned, and before the diluviation of the land, formed part of their 13½ annas share. There is no doubt that a great burden of proof was imposed upon the Plaintiffs by the form of the third issue, and it may be that that burden ought never to have been so imposed. But with that, as I have already said, we have nothing to do. I would only remark that if a mistake has been made to the prejudice of the Plaintiffs, the initial mistake was made in the Subordinate Judge's Court when the third issue was framed, for it does not appear to have been warranted by the allegations contained in the plaint.
"We also think it quite clear that whatever be the construction of the remand order, the HIgh Court did then pronounce a final opinion upon the title of long and continuous possession, which was found in favour of the Plaintiffs in the Courts of the Subordinate Judge and of Mr. Tweedie, and did then also decide that upon the pleadings in the case, and the issue which had been framed, it was not open to the Plaintiffs to shew or rely upon such a title; and we cannot review that decision. Now, when Mr. Peterson's decree has found to be in the Plaintiffs, and upon which he grounds his decision in their favour. Although Mr. Peterson correctly states the nature of the remand order in the commencement of his judgment, when he says that `the case has been remanded by the Special Appellate Court for the retrial of the main issue in the suit, or in other words, that this Court may form an independent judgment on the evidence as to the third issue framed by the Subordinate Judge;" and although Mr. Peterson in fact concludes his judgment with a formal finding upon this issue, or rather upon a portion of it, in favour of the Respondents, as when he says, - On the whole, then, I come to the conclusion that the Subordinate Judge's decision is correct, and that the Plaintiffs have proved that the lands claimed by them belong to their 13½ annas share of mouzahs Bil Nalchoongi and Bil Silpatta," it is evident from the rest of Mr. Peterson's judgment that there was not a particle of evidence offered to prove when the chur lands re-formed, nor where they re-formed, much less evidence which shewed that they re-formed upon the site of 13½ annas share which originally belonged to the Respondents. Such remarks as the District Judge has made upon the evidence are limited to the proof which was given by the Plaintiffs of the long and continuous possession which they enjoyed previous to their ouster by the Defendants.
"Such being the case, the decree of the Lower Court cannot be sustained. It is not suggested that there is any evidence on the record shewing when the re-formation took place, or that it was a re-formation on the 13½ annas share, nor does the remand order allow of further evidence being given. After reading the various judgments of the three Courts below, which have had possession of this case for so long a time, and hearing what the pleaders for the parties have to say, it becomes plain that here is no evidence in this case on the above points, and that when the remand order was made which tried the Plaintiffs' case up to the third issue, their suit was virtually decided against them.
"As there is no evidence in the case as to the date or site of the re-formation, an the Court below has no materials upon which it could come to a finding on the third issue, it would be useless to send this case down again to the Lower Court, and we have no alternative but to reverse the decree of the Lower Appellate Court and dismiss the suit of the Plaintiffs, which we do with costs in all Courts."
Doyne, and C.W. Arathoon, for he Appellants, referred to Shiro Kumari Debi v. Gobind Shaw Tunti, Ind. L.R. Calc. 418 and contended that the suit could not be dismissed on the ground of no evidence having been given. There was evidence of possession, and unless that was satisfactorily rebutted the Plaintiffs' case was established. The High Court in special appeal were limited to the question whether there was no evidence at all in support of a finding.
Cowie, Q.C., and Branson, contended that the issue was as to the re-formation of the land in question upon a particular site at a particular date, and that the fact of possession for a greater or less period was not admissible evidence thereunder. Reference was made to Lopez v. Mudun Mohun Thakoor, 13 Moore's Ind. Ap. Ca. 467.
Counsel for the Appellants were not called on to reply.
Cases Referred :-
Lopez v. Mudun Mohun Thakoor, 13 Moore's Ind. Ap. Ca. 467.
Shetabdee Biswas v. Molamdee Mundul, 25 Suth. W.R. 30.
Shiro Kumari Debi v. Gobind Shaw Tunti, Ind. L.R. Calc. 418.
JUDGMENT
The judgment of their Lordship was delivered by
1887 March 11
Lord Watson :- In this case the parties are the respective owners of two divided shares of mouzahs Nalchongi and Silpatta. The Plaintiffs are interested in the larger of those shares, extending to 13 annas 10 gundahs. The Defendants are proprietors of the smaller share, extending to 2 annas 10 gundahs. The area of land which is in dispute in this action is situated on the bank and close to the alveus of the Ichamutti river. It is subject to the action of the stream; and it appears that from time to time the soil on the surface of the area has been washed away, and new soil has been subsequently deposited capable of cultivation. The exact date when the surface was last denuded does not appear; but it seems to be admitted on all hands that for many years past a new deposit has been growing up, and that in point of fact such deposit, since some time after the year 1850, has become culturable. In the end of 1872, or the beginning of 1873, disputes arose between the Appellants and the Respondents as to the right to the disputed ground. The magistrate intervened in February, 1873, and, after inquiry, he adjudged that the Plaintiffs were in possession, and had a right to retain possession of it. The Defendants then instituted a possessory suit, and on the 13th of April, 1873, they obtained a decree affirming their right to possess. That led to the institution of the present action, in which the Plaintiffs, who were ousted under the decree of April, 1873, claimed the property of the disputed area as having been all along in their possession as part of their 13 annas 10 gundahs share of the two mouzahs in question. The Defendants resist the action on the ground that they had been in possession, and that the land in dispute was an integral part of their smaller share of these mouzahs - the 2 annahs 10 gundahs share. Throughout these proceedings, at least since proof was closed, it is admitted on both sides that the area in dispute belongs to one or other of these two demarcated shares.
Issues were adjusted by the Subordinate Judge. It is only necessary to deal with the third of them; because it is conceded now that if the Plaintiffs shall be held to have a right to the land, as part of their 13 annas 10 gundahs share, they are not barred by limitation from prosecuting the present suit. The third issue adjusted was in these terms: - "Is the land in claim a re-formation on the site of the original diluviated land of the 13 annas 10 gundahs share of Kismat Nalchongi and Silpatti, held by the Plaintiffs and pro forma Defendants, or of the 2 annas 10 gundahs share held by the substantive Defendants?" The Subordinate Judge, after an elaborate review of the evidence before him, came to the conclusion, which is embodied in this finding. "The allegation made by the Plaintiffs that the land in claim is a re-formation on the site of the original land of Nalchongi and Silpatta covered by their 13 annahs 10 gundahs share, and that they have from before been in possession of it is found true." In other words his finding amounts to an express affirmation of the first alternative branch of the third issue, which exhausts the issue.
Upon appeal by the Defendants to the District Judge, he came to the conclusion that the judgment of the Subordinate Judge ought to be maintained. He concurs to a great extent in the view taken by that Judge of the evidence, but he differs from him in his estimate of that evidence in many respects. The conclusion which he came to upon the part of the case which we are now dealing with was this, that the Plaintiffs "held, occupied, and enjoyed the lands in suit by the title above set forth as part and parcel of the lands appertaining to the 13 annas demarcation for much more than twelve years before ousted by the Defendants." That was not a simple affirmation of the conclusion at which the Subordinate Judge had arrived. It pointed to a very different kind of case from that to try which issue No. 3 had been adjusted. It affirms a title, at least it is sufficient to affirm a title, by adverse possession, which is a title in derogation of the Defendant's right, even assuming it to be proved that at an earlier period the land in dispute formed part of the smaller share, and not of the 13 annas 10 gundahs share belonging to the Plaintiffs. Accordingly when the case was carried by appeal before the High Court of Calcutta, the learned Judges came to the conclusion that the decree of the District Judge ought to be set aside, and the case remanded for re-trial. The High Court were of opinion that the District Judge had not disposed of issue No. 3, that his finding No. 2 was not an answer to that issue, but the affirmance of a title which would prevail over the title which would have arisen to the Defendants by the negation of the first branch of issue No. 3, and the affirmance of the second branch; and they were also of opinion, although their Lordships are not altogether disposed to concur with them in that respect, that the District Judge had not applied his judicial mind to the consideration of the somewhat intricate evidence before him.
On remand the case was heard and disposed of before the successor of the District Judge who had first disposed of the case. He, in the main, agrees with the Subordinate Judge in his estimate of the evidence, and he affirms the judgment of the Subordinate Judge. The conclusion which he came to on the evidence is very concisely expressed in these words: - "On the whole then I come to the conclusion that the Subordinate Judge's decision is correct, and that the Plaintiffs have proved that the lands claimed by them belong to their 13 annas share of mouzahs Bil Nalchongi and Bil Silpatta."
Again the Defendants appealed to the High Court, and the cause there was heard and determined before two fresh Judges, who came to the conclusion that the decree of the Lower Appellate Court ought to be reversed, and the suit dismissed, and accordingly they gave effect to that opinion in their judgment.
The grounds upon which the learned Judges of the High Court came to that conclusion are very distinctly expressed in their judgment. They are two-fold; and, in the opinion of their Lordships, neither of these grounds is sufficient to sustain the A judgment which was pronounced. They came, in the first place, to the conclusion that Mr. Peterson, who last disposed of the case, had fallen into the same error as his predecessor, and, instead of dealing with the identity of this disputed parcel with one or other of the two shares of the mouzahs in question, had disposed of the case on the footing that the Plaintiffs had enjoyed prescriptive possession which vested them with a good title as against the Defendants. The learned Judges say: "The judgment now before us contains a finding by the Court that, prior to the ouster by the Appellants, the Plaintiffs had a sufficiently long and continuous possession of the chur lands to confer upon them a title to it." Their Lordships are of opinion that the learned Judges erred in supposing that the judgment of Mr. Peterson contains any finding to that effect.
Then, having come to the conclusion that Mr. Peterson had erred in the same way as his predecessor, and had not dealt with the proper issue in the case, they proceed to consider whether they ought to remand the cause for the purpose of having that 3rd issue tried. They came to the conclusion that it was unnecessary to do so for those reasons: "As there is no evidence in the case as to the date or site of the re-formation, and the Court below has no materials upon which it could come to a finding on the 3rd issue, it would be useless to send this case down again to the lower Court." They came to a conclusion the very reverse of that at which their predecessors, who remanded the case, arrived; they were of opinion that there was evidence in the case bearing upon the subject-matter of the 3rd issue, which ought to be disposed of by the Judge in the Court below. The High Court, on this last occasion, came to the opposite conclusion - that there was no evidence whatever which was fit for the consideration of the Judge, or had any bearing on that issue.
It must be borne in mind that the decree appealed from to the High Court on this occasion being a decree after remand, on a second or special appeal, the learned Judges had not, and accordingly they did not profess to have jurisdiction to deal with it on its merits. But it was, in the opinion of their Lordships, within their jurisdiction to dismiss the case, if they were satisfied that there was, as an English lawyer would express it, no evidence to go to the jury, because that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge.
Their Lordships are very clearly of opinion that the reasons assigned by the learned Judges cannot be sustained. They are of opinion, with the Judges who made the remand, not only that there was an issue proper to be tried, but that there was evidence in support of that issue, or bearing upon that issue, which was proper to be considered and disposed of by the District Judge. The theory upon which the learned Judges who last disposed of the case proceeded, so far as one can gather from their observations, appears to have been this: that evidence of possession is not receivable as evidence of the identity of a piece of ground; that, in other words, evidence of possession is not material or good evidence in a question of parcel or no parcel. Perhaps they do not go quite so far as that, but they certainly go the length of indicating their opinion that evidence of subsequent possession is not good evidence upon the question of parcel or no parcel at a previous date. To countenance that proposition would be to introduce an entirely new rule into the law, and their Lordships do not think that a judgment resting upon such a ground can be upheld. When the state of possession for a long period of years has been satisfactorily proved, in the absence of evidence to the contrary, presumitur retro. In the present case there is evidence tending to prove possession by the Plaintiffs for a considerable period antecedent to February, 1873. Whether it is sufficient to establish the Plaintiff's possession, and whether if established that possession is sufficient to warrant the inference of fact derived from it, are questions upon the merits of the case. The evidence has been disposed of by the Judge below as a Court of appeal after careful consideration, and upon the merits his judgment was final in the High Court, which was sitting upon a second appeal, and is final and binding upon this Board.
Their Lordships will accordingly humbly advise Her Majesty that the last judgment of the High Court ought to be reversed, the judgment of Mr. Peterson, the District Judge, affirmed, and the appeal dismissed with costs in the High Court. The Respondents must pay to the Appellants the costs of this appeal.
.