Badri Narain Jha and Others vs Raghunandan Jha and Others

This appeal by the plaintiff arises out of a simple suit for declaration of title to and recovery of possession of 14 dhurs of land which on the findings appertain to plot No. 20.

The Courts below have concurrently found that the title to plot No. 20 was with the plaintiff. But the appellate Court in disagreement with the trial Court dismissed the suit upon the ground that the plaintiff had not proved that he was in possession within twelve years of 28th January 1944, the date on which the suit was instituted. The trial Court had also given a decree in favour of the plaintiff for the price of 250 bamboos said to have been out by the defendants, but this decree was also reversed m appeal. Hence the second appeal to this Court.

It is argued on behalf of the appellants that having regard to the nature of the lands and the subject matter of the dispute namely the bamboo clump, the Court below was wrong in throwing the onus on the plaintiff and that it should have been held that in such a case possession follows title. We are satisfied on a perusal of the judgment of the learned Additional District Judge that he was wrong in upsetting the decree of the trial Court. As we have said above, the nature of the subject-matter of dispute was a bamboo clump and it was not capable of possession every day or even at a particular season every year. The only finding of the trial Court is that the defendants got the bamboos out on 15th January 1944.

But there is no finding of the appellate Court contrary to this point. Nor has he given any finding that the defendants ever appropriated the bamboos by either cutting them or selling them on any earlier date. In this state of the record, title having been found to be with the plaintiff, he was entitled to a decree for 3 declaration of title to and possession, of the area covered by the bamboo clump.

The appellate Court did not give any finding on the value of the bamboos said to have been removed by the defendants. But having regard to the nature of the evidence given on this point, we are not disposed to remand the appeal for rehearing as we are satisfied that the plaintiff has failed to prove that the defendants removed such a large number of bamboos on 15th January. Accordingly, the decree of the learned Additional District Judge will be affirmed with regard to the claim for the price of the bamboos, but in other respects the decree of the trial Court will be restored in so far as he declared the title of the plaintiff arid awarded him possession of the disputed 14 dhurs of land. In the circumstances, the plaintiff will be entitled to half the costs.