Jaisri Sahu and Another vs Doma and Others

Imam, J.—This is an appeal by the plaintiffs. They sued for recovery of possession of the lands in suit which were recorded in the revisional settlement under khata Nos. 70 and 71 in the name of one Harakhman Sahu. On llth February 1936, Harakhman Sahu sold these lands to one Alam Sahu under a registered sale deed. Alam Sahu subsequently in the year 1941, sold to the plaintiffs under a registered deed dated 17th April 1941, the lands in suit. The plaintiffs after their purchase from Alam Sahu attempted to take possession of the lands, but were resisted by the defendants. Both the courts below rejected the defence case and came to the definite conclusion that Alam Sahu was not the farzidar of Harakhman Sahu and that the sale to the former was for consideration, valid and a genuine transaction. Both the Courts also held that under the document Alam Sahu acquired a valid title and the alleged settlements made in favour of the defendants by Harakhman Sahu after he had transferred his interest in the lands were of no help to the defendants. It would also appear from the judgments of the courts below that Harakhman Sahu was an unscrupulous man; but the courts below were of the opinion that the plaintiffs'' suit must be dismissed on the ground that Section 46(4)(a), Chota Nagpur Tenancy Act, stood in the way. The section states that:

An occupancy-raiyat, who is not an aboriginal or a member of a scheduled caste, may transfer his right in his holding or any portion thereof to any person who is resident within the local limits of the police-station area within which the holding; is situate by sale, exchange, gift, will, mortgage or lease.

The Munsif came to the conclusion that the plaintiffs were not residents of village Malti where the lands in suit were situate and, therefore, the purchase by the plaintiffs was illegal and inoperative. The lower appellate Court came to the conclusion that the story of the plaintiffs'' having purchased a house in. Mauzah Malti was a myth and that the plaintiffs were not residents of village Malti or of any other village within the local limits off police station Mander (the thana within which the lands in suit lie).

It was urged on behalf of the appellants that before one could apply Section 46(4)(a) Chota Nagpur Tenancy Act, it had to be found as a fact that the plaintiffs were not residents within the local limits of the Police-station area within which the, lands in suit were situate. No issue had been framed on-this point as to whether the plaintiffs at the-time that the document was executed in their favour in 1941 by Alam Sahu were residents within the local limits of police station Mander and it is argued that the plaintiffs were prejudiced by having to meet all of a sudden the contention that they were not residents within the local limits of police station Mander. It was pointed out that although the document by which the plaintiffs acquired the lands from Alam Sahu. distinctly describes the vendees as residents of Malti and the plaint distinctly states that, the plaintiffs were residents of Malti, a village within the jurisdiction of police station Mander, there was nothing in the various written statements filed on behalf of the-defendants in which there was the slightest indication by which the plain tiffs could under stand that any of the numerous defendants were challenging the fact that the plaintiffs were residents of any place, village or area within the local limits of police station Mander.

The learned Subordinate Judge seemed to think that although no issue was framed, but if the parties adduced evidence on the point and discussed it before the trial Court and a decision was given on it as if there was an issue framed on it, the decision would not be set aside in appeal on the ground merely that no issue had been framed. The question which seriously arises in this case is whether the parties in fact led any evidence on the point as to whether the plaintiffs were residents of any village, place or area within the local limits of police station Mander. The learned Subordinate Judge thought that paragraph 5 of the written statement of defendant No. 1 indicated that there was a plea to the effect that the plaintiffs were not residents within the jurisdiction of police station Mander. Several written statements were filed in the case and I have been through every one of them. Not a single defendant, barring defendant No. 1, has indicated in the slightest way that the plaintiffs were not residents of village Malti or of any place within the jurisdiction of police station Mander. This paragraph 5 of the written statement of defendant No. 1 reads as follows:

That the allegations in paragraph III are manufactured. Even if sale has been held, it is farzi, collusive and without consideration and it has all been paper transaction conferring no title or possession of the land since the vendor belongs to a different area.

This paragraph appears to have been corrected by the pleader who has initialled every correction that he has made in the written statement but did not alter the word "vendor" into "vendee". The learned Subordinate Judge is of the opinion that the word ''vendor'' was a mis-type for ''vendee'' and, therefore, there was an assertion in at least one of the written statements that the plaintiffs belonged to a different area. It has to be remembered that the case of the defendants throughout was that Alam Sahu was never in possession of the lands and that the transaction between him and the plaintiffs was collusive, fraudulent, without consideration and a farzi transaction. If defendant 1 in denying the allegations of the plaintiffs in para. 3 of the plaint reiterated his claim that the whole transaction was a mere paper transaction between Alam Shah and the plaintiffs, I would not be surprised if any one reading this paragraph in the written statement would think that the assertion further was that the entire transaction was a paper transaction because the vendor Alam Sahu lived in another place. I do not think that the courts below were at all justified in taking this paragraph into consideration and thereby attributing to the plaintiffs due notice of a plea by one of the defendants that they were not residents within the jurisdiction of police station Mander.

On a further point, I am of opinion that the courts below have misdirected themselves, namely, that the parties knew what they were about and evidence was being-led with reference to it. I have read the entire oral evidence in this case and I find that none of the plaintiffs'' witnesses spoke one word in their examination-in-chief on the question as to whether the plaintiffs were residents within the jurisdiction of police station Mander.

It was only in cross-examination that questions were put by the defence to the effect as to whether the plaintiffs had a house or lands in village Malti. There was to these questions the answer in the affirmative and the lower appellate Court seemed to reject this evidence on the ground that there was no; documentary evidence in proof of it. It seems to me somewhat extraordinary that when witnesses are taken by surprise and; asked certain questions in cross-examination; and the answers are to the detriment of the defendants that the witnesses should be disbelieved on the ground that they have got no documentary evidence in support of their evidence. This clearly indicates, to my mind, that the plaintiff never thought for a moment that he had to lead evidence on the question as to whether he was a resident within the jurisdiction of police station Mander.

This is the state of the evidence so far as the plaintiffs are concerned and as to whether the defendants ever thought that they were leading evidence on the point it is remarkable by the complete absence of any statement on the part of their witnesses-that the plaintiffs were not residents within the jurisdiction of Police station Mander. Of all the witnesses for the defence only one has come forward to say that the plaintiffs have no house in Malti which, in my opinion, is wholly irrelevant and does not decide the matter as to whether the plaintiffs are or are not residents within the jurisdiction of police station Mander. None of the witnesses for the plaintiffs were challenged on the point, apart from the question of ownership of the land, as to whether any of them were residents within the jurisdiction of police-station Mander. I am quite satisfied on the state of the record that none of the parties ever understood that they were leading evidence on a point material to the decision of the case, namely, as to whether the plaintiffs were residents within the jurisdiction of police station Mander.

I have gone into great length in this matter because I have felt that both the courts have defeated the rightful claim of the plaintiffs by a procedure which is wholly irregular and reasonings which are unsound and I have, therefore, looked into the evidence u/s 103 of the CPC for myself and I am quite satisfied that there is no evidence in the case at all on either side to establish that the plaintiffs were not residents within the jurisdiction of police station Mander. My attention was also drawn to certain authorities to show that by the expression ''resident'' the section did not con-template that the individual must be a permanent resident. There was abundance of evidence on the side of the plaintiffs of their possessing a house and lands not only in village Malti but other villages within the jurisdiction of Police station Mander.

I would therefore hold that the plaintiffs'' evidence. that they are residents of village Malti within the jurisdiction of Police station Mander remained unrebutted and therefore Section 46(4)(a) of the Chota Nagpur Tenancy Act has no application to the case.

The appeal must accordingly be allowed and the plaintiffs'' suit must be decreed with costs throughout.