Narhari vs Ambadas and Others

Siadat Ali Khan, J.—The facts admitted in this Plaintiff�s appeal are as follows:

The Plaintiff-Appellant, Narhari, is the pattedar of survey Nos. 1, 53 & 54 situate in the village Malegaon. On 3rd Shaharewar, 1343F., the village officials reported that the Plaintiff is absconding. Notice was issued on 17th Shaharewar, 1343F., that he should appear within one year otherwise the lands, will be sold by auction. It appears, however, that the lands were actually auctioned on 10th Shaharewar 1347F.

On 11th Meher 1347F; the Plaintiff-Appellant put in an appearance and applied to the Tahsildar to set aside the auction. - On 17th Meher 1347F., the Tahsildar rejected this petition on the ground that it was out of time. On 25th Amardad 1348F., a sale certificate was granted in respect of survey No. 53 to Respondent 1 Ambadas, and in respect of survey Nos. 1 & 54 to Respondent 2, Syed Lal Khan. On 28th Khurdad 1358F., the Plaintiff filed the suit-for a declaration of the right to patta and possession.

Both the Courts held that the proceedings regarding the Appellant''s ascendances were irregular but that they could not decree it as it was out of time. Hence this second appeal. We have heard at length the arguments of the learned advocates of the parties.

Only two questions require decision in this appeal. First is, whether the proceedings regarding Appellant''s ascendances were correct and in accordance with law, and next whether the suit is out of time. We begin with the first question. Even cursory examination of the record will show that the ascendances proceedings were not correct.

Defendants own witness D.W. 1 Sridhar, the Patwari of Malegaon has admitted on page 24 of the paper-book that (the Appellant) Narhari used to come to Malegaon occasionally and had not absconded. He has stated further that the village officials and the Defendants (Respondents) knew that Narhari resided in Poona. After a perusal of the Revel me file, the trial Judge has remarked on page 32 of the paper-book that the Patwari has stated in his report dated 4-6-1344 F., that a letter has been received from the Plaintiff from Poona.

The learned Judge has, therefore, rightly inferred that the patwari knew the Plaintiff�s address. Again a letter of the Patwari Ex. 1 dated 10-7-1343 F., is filed and proved by the Plaintiff and this will show that the village officials not only know that the Plaintiff resided in Poona, received letters from him, but also wrote to him demanding the payment of revenue. In the face of all this record, it is obvious that the Plaintiff cannot be deemed to have absconded.

It should be noted that Ex. 1 is dated 10-7-1343 F., and the ascendances proceeding starts with the proclamation of 17-10-1343 F. This is strange enough, but it is more strange to read the deposition of the Patwari on page 22 of the paper-book that the Appellant paid the revenue of all the survey numbers upto 1345F.; paid the revenue of survey Nos. 53 & 54 in 1346F., but the revenue of survey No. 1 for 1346F., fell in arrears.

Abscondence means going away to an unknown place to escape some liability. Here the record shows that too Plaintiff-Appellant had gone to Poona where he was employed and had paid his dues till 1345F., or even 1346F. Still the Tahsil Office notifies and proclaims his abscondence in 1343F.

According to the trial judge (page 32 of paper-book) he appears before auction was held in Meher 1345F., and puts up a petition that his lands should not be auctioned, but the lands are nevertheless put to auction. The patwari does not depose, nor any other record disclose that there were any arrears in 1343F., still a notification regarding his abscondence is directed to be published by the Tahsildar in charge. It appears that the rules obtaining in this regard till 1347F., were that the Tahsildar could sanction the auction of the lands of an absconding pattadar and issue the sale certificates.

But from 1347F., the rules were changed and Rule 13 of the Laoni Rules made u/s 54 of the Revenue Act (8 of 1317F) prescribes that the Tahsildar shall auction the land and forward the bid-dings to the Second Taluqdar, who alter scrutiny of the auction proceedings, may sanction the auction. It docs not appear that this rule which came into force by publication in Jarida on 8th Amardad 1347F., was observed. It is clear that the incharge Tahsildar himself sanctioned the auction on 10th Shaharewar 1347F.

It is obvious that the rules had come into force one month before this date and should have been observed. Hence, we are clearly of the opinion that the abscondence proceedings were not regular & in accordance with law and, therefore, null and void. This is the conclusion of both the Courts also, but it proceeds on the ground that only the Talukdar was competent to auction. The question does not appear to have been fully thrashed out: and the reference to the, Laoni Rules of 1347F., is not found in the judgments.

We pass on now to the, question of limitation. It appears from the deposition of Sridhar that survey Nos. 53 & 54 were not given on Laoni to anybody till 1349F. Hut the survey No. 1 was let on Laoni in 1345F., and continued to be in possession of one Chanderbhan till 1347F.

A perusal of paragraph 9 of Settlement Rules will show that if a pattadar is absconding, the village officials on application of some person desirous to cultivate the land will let it on laoni for a year. If the pattadar puts in an appearance within one year the land will be restored to him. On the other hand, if he does not put an appearance the land will be deemed "Ghair makhbuza, kharij-uz-khata" i.e., not possessed by anybody and not on the rolls of patinas and the Tahsildar will take action in accordance with Section 54 of the Revenue Act.

A perusal of this section will show that on petition of persons desirous of cultivating the lands, the Tahsildar will give it on patta to the Petitioner according to the rules framed in this regard and, if there is more than one Petitioner, the land will be auctioned and the highest bidder will be entered as pattedar by the second Taluqdar. This procedure does not show that the Government resumes the possession of the land, or, the village officials on their behalf, either, actually or symbolically take over the possession of the land. The procedure only shows that the Revenue Officials arrange for its giving on patta after a sale by auction.

Indeed the words "gair Makbuza" show clearly that the possession of the land is not resumed by the Government. We are supported in this view by the wording of the proclamation issued in this case: In this proclamation one year time is allowed to the Appellant or his heirs to appear; and it is stated therein that in default action according to law will be taken. Thus, the proclamation also did not pro-claim that the lands will be taken over by the Government.

The position, therefore, was that as far as survey Nos. 53 & 54 are concerned their revenue was paid by the Appellant till 1346F., and their sale-certificate was not issued till 25-9-1348F., and as far as survey No. 1 is concerned its revenue was paid till 1345F., and it was let on laoni in that year.

According to the wording of Article 142, Limitation Act for discontinuance of possession it is not only necessary that the possession of the possessor should discontinue but, it is also necessary that it should be followed by somebody who should get actual possession.

A reference to Rustomji''s law of Limitation Vol. II page 1223, 5th Ed., will bear this out, and a perusal of cases - ''Smith v. Llyod'' (1854) 9 Exch. 562 (A) and 2 Corpus Juries 53 (D), will show that the possession of the possessor will be deemed to have discontinued only when somebody else takes over actual possession; and actual possession means when there is pedals possession or pedals position, i.e. a foot-hold on the land, actual entry, possession by standing upon the land or occupation of it as a real demonstrative act done.

Thus, it is evident that as nobody, not even the Government, had entered into actual possession so far as survey Nos. 53 and 54 are concerned, it can-not be said that the Appellant had discontinued pos-session under Article 142 and, therefore, his suit cannot be considered as out of time in respect of these two survey numbers. Regarding survey No. 1, however, as the land was let on laoni in 1345F., to Chanderbhan, it may be considered that the Appellant''s possession was discontinued from that year.

The suit was brought in 1358F., and as such it was out of time by more than one year. The plain-tiff''s appeal is, therefore, allowed to the extent of survey Nos. 53 & 54 and dismissed as regards survey No. 1. Possessions of the first mentioned survey numbers alone shall be given to him. It should, how-ever, be noted that his suit for patta will be'' out of time under Article 120, Indian Limitation Act.

The time for bringing a suit for declaration of patta is only six years from the date when patta was granted to Respondents 1 and 2. The patta was granted to them in 1348F., and as the suit was brought on 28th Khurdad, 1358F., it was out of time by four years. The suit for patta, therefore, will stand dismissed. Parties to bear their own costs.