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Suit No. 278 of 1947, decided on 19th May, 1958.
, O. VIII, r. 5 proviso--- Denials of averments in plaint not speck‑Issues allowed to be raised because defendant was an agriculturist‑Evidence Act (I of 1872), S.58.
, S. 135‑B‑Entries of names of plaintiffs as Khatedars‑Plaintiffs treated as owners in absence of any contrary suggestion.
‑Not transferring any interest in land but delivering only possession for cultivation‑Document not a sale‑deed but an agreement.
‑Proof of execution‑Not necessary where document was filed by defendant, which plaintiff wanted to use in his favour.
, First Schd. Art. 142 Plaintiff may prove possession and subsequent dispossession from defendant's evidence.
Jamiatrai for Plaintiff.
A. H. Farid for Defendant.
Date of hearing : 9th May 1958.
This suit was filed by Chandurbhan Wadhumal and Gobindsing Partabsing Shahani as receivers appointed by 1st Class Sub‑Judge, Hyderabad on the 11th of September 1940 in Suit No. 64 of 1940. That was a suit for partition of the property left by Dewan Sahibsing Shahani, who had died leaving behind 3 sons and a widow. One of the sons, viz., Mehtabsing had filed it.
The receivers filed the present suit against the defendant for ejectment from the land bearing survey Nos. 229, 230, 231 and 232 situated in Deh Thano., Tapo Malir, Taluka Karachi and mesne profits. Their allegations in the plaint are that this property originally belonged to D fwan Sahibsing Chandasingh Shahani ; that after his death it was mutated in favour of his three sons viz., Partabsing, Mehtabsing and Shersing ; that the defendant trespassed upon it in 1940, and although he acknow ledged the three sons of Dewan Sahibsing to be the owners of the land and paid land revenue on their behalf, yet refused on demand to deliver vacant possession to them. The defendant resisted the suit on the plea that he was given the possession of the land by one Hussain Mahmud in the yeah 1940 against the payment of Rs. 4,000 and that since then he has been paying land revenue on his own behalf. This defence is contained in the written statement dated the 3rd of May 1948. After its sub mission, dates were given for various purposes including the discovery of documents, and consent issues were framed on the 8th of November 1948. On the 5th of March 1949, the defendant applied for an amendment of his written statement for raising the plea that Hussain Mahmud was in possession of the land from 1936 and that before him Achar son of Khuda Bux and Murad Muhammad Sher Muhammad were in possession from 1921, and that none of them had acknowledged the plaintiffs or any one else to be the owners of the land. This application was dismissed on the 9th of May 1949, by the following order :‑
"The application for amendment seeks to set up title by adverse possession, which is contrary to para. 2 of the written statement, which admits that the defendant acquired possession from Hussain Mahmud and document dated the 16th of May 1940 (Exh. 16, the translation of which is Exh. 16‑A) clearly shows that Hussain Mahmud had accepted the plaintiff's title as owner. The application is not bona fide or in the interests of justice. I dismiss it with costs".
On the 8th of October 1949 the defendant made another applica tion for permission to file a further written statement and for raisin] pleas under the Evacuee ‑Property Law. This application was granted on the 12th of October 1949. The amended written statement was filed on the 4th of November 1949 and additional issues were framed.
As a result of issue No. 1 the question whether the property in suit is evacuee property was referred to the Custodian under section 34 of Ordinance XV of 1949 and further proceedings were stayed on the 13th of September 1950. The reply of the Custodian was received in June 1951. It is signed by Mr. Akbar Hussain and reads as follows :‑
"I am directed by the Central Government to suggest that the Sind Chief Court should first determine the question of the plaintiffs' title to the property. The evidence on the record is insufficient to enable the Central Government to whom the case was referred under section 3 of Ordinance XV of 1949, to record a finding".
The counsel of the parties rightly agree that the position according to the reply of the Custodian is that the property in question is not evacuee property. I have passed an order on 23‑4‑1958 accordingly.
After the receipt of the reply the defendants made an application on the 18th of September 1951 with a prayer that some additional issues should be framed. It was fixed for hearing on the 1st of October 1951. Before its disposal the defendant made another application on the 21st of September 1951 and prayed for striking 7 additional issues. This application was also fixed for hearing on the same day. On the 28th of September 1951, the defendant made another application for framing additional issues. These applications were heard together on the 5th of October 1951. The order of the Court on them was as follows :‑
"I allow Issues (a), (b), (c) and (d) stopping at the word powers and renumber them as issues 1‑4. I frame the following issue as Issue No. 5.
Whether the suit for ejectment is barred by Article 142 of Limitation Act.
The issues framed on 23‑1‑1950 will be renumbered 6‑14. Issues will be retyped.
I have allowed these issues having regard to the provisos respecting to O. VIII r. 5 and section 58 of the Evidence Ac because the defendant is an agriculturist although the denials of averments in plaint are not specific.
Documents to be filed within a month".
The issues in the final form are as follows :‑
(1) "Was Diwan S C. Shahani the owner of S. Nos. 229 to 232 Deh Thano
(2) Were the said Survey numbers transferred to names of his sons on his death, as owners
(3) Did M. S. Shahani file suit No. 64 of 1940 in Court of First Class Sub‑Judge, Hyderabad, for partition as alleged
(4) Were the plaintiffs appointed receivers in that suit as alleged inter alia of the property in this suit If so, what were their powers
(5) Whether the suit for ejectment is barred by Article 142 of Limitation Act
(6) Is the property in suit evacuee property If so, what is the consequence (covers para. 5 of written statement dated the 4th November, 1949).
(7) Is the defendant a trespasser as alleged by the plaintiff. If so, when did he trespass on the lands in suit (covers paras 2 and 3 of written statement also).
(8) Is any notice to the defendant necessary If so, has any valid notice been given to the defendants If not, what is the consequence
(9) Is the plaint sufficiently stamped
(10) To what mesne profits, if any, are plaintiffs entitled
(11) Is there any valid custom by which the defendant is entitled to Niber
(12) If so, to what Niber is the defendant entitled (covers para 7 of written statement dated the 4th November 1949).
(13) To what reliefs, if any, are the plaintiffs entitled
(14) General.
Documents to be filed within a month".
The first witness of the plaintiff, namely, Gobindsing who is plaintiff No. 2 himself, was examined on the 8th of December 1952 on commission. He stated
"Plaintiff No. 1 has left for Bharat and is at present in Bangalore. At the time of filing this suit the plaintiff 1 was the official receiver of the Hyderabad District Court and he continued to be receiver of the Hyderabad District Court till he left for Bharat. He left for Bharat in the beginning of 1948".
It was probably realised after this disclosure by plaintiff No. 2 himself that it was not proper that plaintiff 1 should be allowed to continue as one of the plaintiffs. An application was, there fore, made on the 16th of May 1955 for striking off the name of plaintiff 1. This application was signed by Mr. Jamiatrai, and an affidavit of his clerk was filed in support of it. The application stated as follows :‑
"The plaintiffs have filed the above suit as receivers appointed in suit No. 64 of 1940 filed in the Court of First Class Sub -Judge Hyderabad (Sind) which was subsequently transferred to the Court of the 1st Class Sub‑Judge Mirpurkhas.
While leaving Pakistan for Bharat the plaintiff No. 1 had made an application in the end of 1947 in Suit No. 64 of 1940 for being discharged and by an order of the 1st Class Sub Judge, Mirpurkhas passed on 12th April 1954, plaintiff No. 1 has been discharged and plaintiff No. 2 has been authorised to continue the proceedings against the defendant in this suit.
It is therefore prayed on behalf of the plaintiff No. 2, that this Hon'ble Court will be pleased to strike off the name of plaintiff No. 1."
An, An affidavit in support of the application is filed herewith. The defendant opposed the application and a counter‑affidavit was filed on his behalf by his son‑in‑law. It is dated the 4th of August 1955. The Court granted the application subject to the objections of the defendant and passed the following order on the 12th of September 1955 :‑
"Application allowed subject to Mr. Farid taking such objection as he thinks proper as to the maintainability of the suit in the absence of the plaintiff whose name has been struck off from the array of the plaintiffs."
From this date there is only one plaintiff in the suit. After this amendment this case was transferred to the District Courts on their establishment at Karachi but it was found that they did not have the jurisdiction to try it and therefore it has been received back for trial by the High Court. This is the eleven years history of this suit.
The evidence produced by the parties is not bulky. Two witnesses only have been produced on behalf of the plaintiff. One of them, P. W. 1, was examined on commission and the other P. W. 2 was examined in Court. The defendant's counsel applied orally on 23‑4‑1958 after the close of the plaintiff's evidence for time to produce defence witnesses and to examine the defendant on commission but the request was turned down by me by my order of the same date. About a dozen .documents have been exhibited as documentary evidence in the case.
Mr. Farid the learned counsel for the defendant gave up issues No. 3, 6, 8, 9, 11 and 12: Issue No. 6 regarding the evacuee character of the property, as mentioned above was decided by me on 23‑4‑1958 by the consent of the parties. Issue Nos. 13 and 14 are general. Counsel pressed the remaining issues only.
Issues Nos. 1 and 2.‑"Was Diwan S. C. Shahani the owner of S. Nos. 229 to 232 Deh Thano
"Were the said survey numbers transferred to the names of his sons on his death, as owners "
These issues can be decided jointly. In support of these issues the plaintiff's proof consists of the statement of Govindsing P. W. 1 the plaintiff Exh. A‑1 (translation A1‑1) an extract from the Record of Rights, statement of Ahmed Aslam, Tapedar P. W. 2 and Exh. AA (translation AA‑1) mutation proceedings in favour of the defendant. Goviridsing is the grandson of Dewan Sahibsing and has stated from his personal knowledge that the land in suit was his grand‑father's property and that Hussain Mahmud was a lessee. Exh. A‑1 is a copy of the mutation, made in 1934‑35 in the revenue records of the land in favour of the three sons of Dewan Sahibsing. The Tapedar has stated that these three "gentlemen are shown (in the revenue records) as the owners". In addition to this evidence the learned counsel of the plaintiff h4s relied on Exh. 16 (translation Exh. 16‑A) which contains an admission of Hussain Mahmud that he allowed Usman to cultivate the land in dispute and that Diwan Sahibsing was at least the overlord. The executant went to the extent of stating in this document :
"Apart from the question of land assessment, cultivator Usman will settle about the lease money with the owner of the land."
The learned counsel of the defendant has contended that the proof adduced by the plaintiff is inadequate for succeeding in the suit and has advanced three arguments in support of his contention: Firstly, according to him the statement of the plaintiff is of no value, secondly the entries in the record of rights do not establish ownership and thirdly Exh. 16 cannot be read in evidence nor is it binding on the defendant His criticism of ‑the plaintiff's statement consists of an emphasis on the following answers of the plaintiff in his cross‑examina tion :‑
"I have not produced today any sale deed to prove the title, of Diwan Sahibsing. No such document was given to me: Except a copy from the Record of Rights, I have no other document in my possession in connection with the title of the property in suit."
Further,
"Except the names of Hussain and after him Kassim Kambar who took possession from Husain there were no other lessees of the property in suit. I have no documentary proof to show that Hussain was my grand‑father's lessee or lessee of the suit property. I have no documentary evidence with me signed by Hussain to show that he was lessee of the property in suit. Ever since my memory goes Hussain was lessee of the suit property. I do not know if Achar Mehrani was in possession of this suit property. I do not know if Hussain had taken possession from the said Achar. I could not trace any lease deed or rent note in respect of the property in our favour. I cannot say from whom my grand‑father purchased this property."
It is true that the knowledge of the plaintiff is limited and he has no title deeds or lease deeds, but there is no reason to disbelieve him to the extent to which he has been able to depose on facts. The record of rights supports him. The learned counsel is right in contending that entries in the record of rights do not necessarily support the claim of ownership. According to section 135‑B of the Bombay Land Revenue Code, 1879 the names which are entered in this record are of holders, occupants, owners or mortgagees of the land or of assignees of the rent or receiver thereof, but this provision of law is consistent with the claim of the plaintiff. Exh. A‑1 shows that Diwan Sahibsing was a Khatedar and on his death his three sons became his successors. It is true that this entry does not by itself prove that they were owners but the plaintiff says that they were owners and this entry supports the statement because there is no B suggestion of any other reason or explanation why otherwise their names should have been entered as Khatedars. Such entries are not conclusive proof of the facts stated in the record, but they are certainly evidence of the facts recorded therein as pointed out in Ganga Bai v. Fakir Gowda (A I R 1930 P C 93). The plaintiff's case is thus corroborated by this evidence. The statement of the plaintiff corroborated by the record of rights, becomes con clusive evidence, as against the defendant, with the support of the admission made by Hussain Mahmood in Exh. 16. He has admitted in this document that he was a cultivator, that the land was in the Khata of Diwan Sahibsingh and that the cultivator had to settle the lease money with the owner. The learned counsel of the defendant has objected to the admis sibility, relevancy and sufficiency of the proof of this document for reasons discussed below According to him it is not admissible because it is not properly stamped, it is not relevant because it is not between the parties in this suit and it has not been proved because the signature of its executant has not been proved. Counsel has contended that while the amount stated in it is Rs. 4,000 it bears a stamp duty of one rupee only. This is true but the stamp duty on an agreement could be of one rupee only unless it is contended that the nature of the transaction attracts higher stamp duty under some article of the Stamp Act, 1899. Counsel has not suggested any Article under which higher stamp duty may be said to be payable. He was not prepared to call it a sale deed in spite of my suggestion to him because the executant, Hussain Mahmood (or Mahmood Hussain son of Mahmood) did not profess to have any interest in the land, not even tenancy rights and purported only to deliver possession, which according to him he had from 1921. In a vague manner, "the amount of lease money" was left by him to be settled between the promisee and the owner. He did not even claim adverse possession. It was sale of no interest in land and amounted merely to a record of the delivery of possession for cultivation with certain baseless undertakings and subject to some admissions which are against; the interest of the defendant. Is it a sale of bare occupation of the land or an agreement I am inclined to think that it is an agreement.
The counsel's objection to the relevancy of Exh. 16 is clearly not correct because it is a document executed by a predecessor of the defendant namely Hussain Mahmood, in favour of Usman. In para. 3 of the written statement the defendant has pleaded that there is no privity of contract between the plaintiff or three sons of Diwan Sahibsingh and the defendant, but the contents of the second paragraph of the written statement show that the defendant's claim to possess the land is based on Exh. 16. The year in which he came into possession, the name of the person who is said to have put him in possession and the amount of money mentioned in this para tally with the corresponding particulars stated in Exh. 16. Moreover, the defendant stated inn his affidavit dated 17‑8‑1948 submitted in reply to an applica tion of the plaintiff' made under D. XI r. 12, C. P. C., that he had no other document in his possession or power relating to the matters in question in the suit except this document and pro duced it in Court on 7‑1‑1949. There is a remark in column 8 of Exh. AA (translation Exh. AA‑1) by which the name of the defendant was entered in the records of rights in the place of the three sons of Diwan Sahibsing which connects Usman in whose favour Exh. 16 was executed with the defendant. The officer has remarked that Usman was a nephew of the defendant and made the transaction recorded in Exh. 16 on behalf of the defendant. Exh. 16 is for these reasons not only relevant but the admissions contained in it are binding on the defendant.
It was exhibited as Exh. 16 by Vellani, J. (now Mr. Vellani advocate) by his order dated 9‑5‑1949 (reproduced above) and it has been marked by me as such on its face. The learned counsel of the defendant has contended that the document could not be exhibited because the signature of the executant has not been proved. This objection is not valid because this is a document of the defendant himself and can be used against him. The t plaintiff's counsel has relied on it as a piece of evidence coming from defendant.
There is no evidence of the defendant to contradict the ownership of the plaintiff except the combined effect, for whatever worth it is of the admitted facts that the defendant has been paying the land revenue from 1940 at least, (see Exhs. 12, 13 and 14) is in occupation of the land from this year and that his name was mutated in the land revenue records on 9‑11‑1948 (see Exh. AA). Up to the date on which his name was entered in the revenue records as the Khatedar his payments of revenue were accepted by the revenue authorities on behalf of the three sons of Diwan Sahibsingh because they continued until then to be the Khatedars. His occupation of the land and mutation of his name in the revenue records cannot be better in nature than the contents of Exh. 16 on which they are based, can make them. It appears from Exh. AA that he applied for the mutation of his name on 22‑9‑1948, more than a year after the institution of this suit and about four months after submitting his written statement in Court, on the basis of Exh. 16. In addition to the remark in the order of mutation (Exh. AA) referred to above, regarding Usman, the following remarks which are found in the order are significant :‑
Witness Mouladad son of Dilmurad and Ibrahim son of Ghulam Muhammad have given st1tements that the said Nos. are in possession and enjoyment of Kassim son of Kambar for the last 8‑9 years and that he cultivates and pays land assessment accordingly. Prior to that these Nos. were culti vated by Hussain son bf Mahmood who sold them to Kassim son of Kambar. As pet agreement the said Nos. have not been sold out. But they have been given for cultivation perma nently.
Further "Record depends on possession and enjoyment. As it has been proved that the applicant Kassim is in possession and enjoyment of the said four Nos., entry may be in his name in the record accordingly. If the party No. 2 deems it their right, they should get the matter decided through the Civil Court".
The counsel of the defendant has contended that the evidence of the plaintiff is not better in quality than that of the defendant and that plaintiff should lose his case because the burden of proof is on him. The strongest criticism of the learned counsel against the plaintiff's evidence is that in ultimate analysis the only substantive evidence of ownership in favour of the plaintiff is the statement of the plaintiff himself unsup ported by direct documentary evidence and at best corroborated by the entries in the record of rights up to 22‑9‑1948. This is correct, but there is no reason to disbelieve this evidence because the defendant has either no evidence m his favour at all or his evidence including mutation in his favour, is founded on Exh. 16 in which his predecessor is admitted to be a cultivator and Diwan Sahibsingh is admitted to be the over‑lord. The defendant himself has not come into the witness box but I do not hold this fact against him because he is said to be an old man of 90 years of age and because he could say nothing more than what his documents can speak for him.
In conclusion I hold that Diwan Sahibsingh Shahani was the owner of the land in suit and that this land was mutated in the name of his three sons as owners.
Issue No. 4.‑Were the plaintiffs appointed receivers in that suit as alleged inter alia of the property in this suit If so, what were their powers
This issue was raised by the defendant because in the early stages of the suit the record of suit No. 64 of 1940 in which the plaintiff was appointed a receiver was not traceable. It has been traced subsequently and is now in this Court. The parties have consulted it freely. Moreover Exhs. 17, 18 and 20 are copies of the orders by which two receivers were appointed to file this suit and later one of them‑was discharged and the present plaintiff was permitted to proceed with it. The objection of the learned counsel of the defendant now is that the suit having been filed by two plaintiffs, one of them is not competent to continue it and secondly the land which is the subject‑matter of this suit was not at all a part of the subject‑matter of suit No. 64 of 1940 in which the receivers were appointed. Both the objections are frivolous. This Court could allow the amend ment of the plaint by striking out one plaintiff as was ordered on 12‑9‑1955 and the objection based on the joint authority of the receivers was removed by the order of the Court which appointed them. The counsel of the defendant has argued that the amendment is not effective because in the body of the plaint there are still references to plaintiffs' in plural. This contention is ridiculous. The second objection is based on an error in the description of the property in suit No. 64 of 1940. In the Schedule to the plaint of that suit the description is given as
"1. Agricultural land situate in Deh Natwan Tapo Malir Taluka Karachi District Karachi Sub‑Registration District ..and Registration District ..bearing following Nos.
S. No. Area S. No. Area S. No. Area
229 4‑24 230 4‑8 231 5‑23
S. No. Area
232 0‑39
Valued at Rs. 3,000".
while in this suit the description is
"Survey Nos. 22 , 230, 231 and 232 Deh Thano, Tapo Malir, Taluka Karachi"
But with plaint of suit No. 64 of 1940 a certified copy of the extract from the revenue records was filed and in it the description of the property is the same as in this suit.
The issue is decided against the defendant.
Issue No. S.‑Whether the suit for ejectment is barred by Art. 142 of Limitation Act
Issue No. 7.‑Is the defendant a trespasser as alleged by the plaintiff If so, when did he trespass on the lands in suit
There is no disagreement between the parties on the year in which the defendant occupied the land. It was 1940. The question is whether he is a trespasser and whether the suit is barred by Art. 142 of the Limitation Act, 1908. The defendants' counsel has contended that the admission of the defendant that he obtained possession of the land in 1940 is not helpful to the plaintiff because the defendant's predecessors in occupation were in possession from 1921 as stated in Exh. 16 and Exh. AA. The plaintiff has according to the learned counsel, to prove independently; as distinct from his allegations in his pleadings as well as the proof of adverse possession adduced by the defendant, that he was in possession of the property within 12 years before the institution of the suit and his subsisting title to such possession at the date of his suit. He has relied on Deuram Ramumal anti others v. Asharam Shewram (1940 Sind 49) ; Ahmed Ali v. Hata (A I R 1939 Lah. 217) : Sangam v. Ganga (A I R 1946 All. 389) ; Shankarsa Canapatsa v. Punamchand (A I R 1937 Nag. 129) : Khanu Chuhar v. Panjal Shah Mir Yaqubali Shah and others (A I R 1933 Sind 279) ; Dharani Kanta Lahiri Ch. and another v. Gaber Ali Khan and others (18 I C 17 (P C)). The plaintiff's counsel has not questioned the propositions of law advanced on behalf of the defendant but has argued that these requirements have been fulfilled by the plaintiff in this case because the predecessor in occupation of the defendant namely Hussain Mahmood has admitted the over lordship of Dewan Sahibsingh in 1940 by Exh. 1.6, and therefore the plaintiff or the sons of Diwan Sahibsing were in constructive possession of the land in suit until 1940 and this suit was filed within 12 years of their dispossession on 12‑5‑1947. The title of the plaintiff to possess the land subsisted on the date of the institution of the suit because except for dispossession in 1940 and denial of plaintiffs' title since then, no change had taken place with regard to it.
These contentions of the plaintiff's counsel are correct and I do feel that Exh. 16 has come as a God‑send to the plaintiff. The defendant's counsel has fought valiantly to remove this piece 'of evidence from the way of the defendant but, as at present advised, I must say that he has not succeeded in his efforts.
In conclusion I decide these issues in favour of the plaintiff and hold that the defendant is a trespasser on the land from 1940 and that the suit is not barred by Art. 142 of the Limitation Act, 1908.
Issue No. 13.‑To what relief, if any, is the plaintiff entitled
Issue No. 14.‑General.
The plaintiff has claimed ejectment of the defendant and mesne profits. Mesne profits are defined in section 2 (12) of C. P. C. and the plaintiff has not proved them. The plaintiff's counsel has conceded this and said that the plaintiff' does not press this part of the claim.
I decree the suit for ejectment and dismiss it with respect to mesne profits with no order as to costs.
A. H. Order accordingly.
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