# \ ' " \ MUSAMMAT MURTI DUSSADHIN AND OTHERS v. SURAJDEO SINGH AND OTHERS

- **Citation:** [1965] 1 S.C.R. 20
- **Court:** Supreme Court of India
- **Decided:** 1964-08-11
- **Bench:** K. SUBBA RAo, s. M. S1KR1
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/musammat-murti-dussadhin-and-others-v-surajdeo-singh-and-others-3349
- **Pages:** 6

## Headnote

Indian Limitation Act, 1908 (9 of 1908), Arts. 142, 144-Sull for
Ejectment-PlaintiO's title admined but pos,.ssion as tenant claimedWhether Art. 142 or Art. 144 applies.
B
One M brought a suit in the Munsif's C'.<>Wt against a number of
persons, including the appellants for a declamtion that certain land constituted the bakslrat interest of the plaintiff, who had been and continued
to be in possession and occupation thereof.
In the alternative be prayed c
for possession if the plaintiff ht\ deemed to have been dispossessed for a
proceedings under s. 144 of the Code of Crirninal Procedure had cast a
doubt on his title.
This sμit followed the proceedings under s. 144 of
the Code of Criminal Procedure which resulted in a decision agalns\
the plaintiff.
The defendants did not deny the title of the plaintiff but
asserted that the plaintiff gave- these lands to the defendants to cultivate
them on balai over more than 2S years ago, and since then the defendants
had been and were in peaceful cultivating po'.;session over the same and
D
had also acquired occupancy right• in them.
The Munsif dismissed the
suit upholding the pleas of defendants.
The plaintiff appealed and succeded before the Appellate Court, which was of the view that the onus
was on the defendants to prove that they were raiyats of the land and
that they bad occupancy rights in these lands and that the defendants bad
not been able to prove their case about settlement and possession.
The
High Court, on appeal by the defendants, held that having regard to
E
the facts and circumstances of this particular case, the burden waa on
the defendants to show whether they have been in possession for 12 :r~
<>r more, and dismis..00 the appeal.
On appeal by· special lcav~,
HELD : On the facts of the case Art. 144 and not Art. 142 applied.
If a defendant not only admits title of the plaintiff but also admitst hat he derived possession from the plaintiff as a tenant, the case must
proceed on the defendant's plea, and for the purpose of deciding whether Art. 142 or Art. 144 applied, it must be assumed that the plaln1ilf
ha..-. not been dispossessed or has not discontinued his possession within
the meaning of Art. 142, for neither the plaintiff nor the defendant alleges
di!'JKl&scssion or discontinuation of possession.
124F
....... F]
JaJdhari v. Rajmdra Singh, A.LR. 1958 Pat. 386. approved.
The Official Receh•er of Eust Godavari v. (_'hava Goi•inda Raju, I.L.R.
11~40] Mad. 9.13 and Relrnri I.al v. S11mlar Das. I.LR. (1935) 16 Lah.
442. Jistingui~hcd.
Kumhharn U1kxhmanna v. Tant:ir<ila Vl'11.l.:.n1rswar/11. ( 194849) L.R.
76 I.A. 202 and Scturatnn,,1 Aiynr v. Venk,uacha/;1 Go1uiden, (1919)
LR. 47 I.A. 76, referred to.
Clv11. Art>1·.I.t.ATE JuRt~llt\TION : Civil Appeal No. 625 of
196()
AppeHI hy '!'Cci;il l:;ivc from the judgment and decree dale<l
July 17. !95X. of 1hc Patna High Court, in A~peal from Appellate
Decree No. 890 ,1[ I 954.
F
G
11
..
,.
•
f
'-
,,. -'·\
MST. MURTI v. SURAJDEO (Sikri ]. )
21
A
B. C. Misra, for the appellants.
B
c
D
E
F
G
H
R. V. S. Mani, E. C. Agarwala and P. C. Agarwala, for respondents Nos. l(a) to l(k) and l(m) to l(r).

## Text

\ ' " \
MUSAMMAT MURTI DUSSADHIN AND OTHERS
A
v.
SURAJDEO SINGH AND OTHERS
August 11, 1964
(K. SUBBA RAo AND s. M. S1KR1 JJ.)
Indian Limitation Act, 1908 (9 of 1908), Arts. 142, 144-Sull for
Ejectment-PlaintiO's title admined but pos,.ssion as tenant claimedWhether Art. 142 or Art. 144 applies.
B
One M brought a suit in the Munsif's C'.<>Wt against a number of
persons, including the appellants for a declamtion that certain land constituted the bakslrat interest of the plaintiff, who had been and continued
to be in possession and occupation thereof.
In the alternative be prayed c
for possession if the plaintiff ht\ deemed to have been dispossessed for a
proceedings under s. 144 of the Code of Crirninal Procedure had cast a
doubt on his title.
This sμit followed the proceedings under s. 144 of
the Code of Criminal Procedure which resulted in a decision agalns\
the plaintiff.
The defendants did not deny the title of the plaintiff but
asserted that the plaintiff gave- these lands to the defendants to cultivate
them on balai over more than 2S years ago, and since then the defendants
had been and were in peaceful cultivating po'.;session over the same and
D
had also acquired occupancy right• in them.
The Munsif dismissed the
suit upholding the pleas of defendants.
The plaintiff appealed and succeded before the Appellate Court, which was of the view that the onus
was on the defendants to prove that they were raiyats of the land and
that they bad occupancy rights in these lands and that the defendants bad
not been able to prove their case about settlement and possession.
The
High Court, on appeal by the defendants, held that having regard to
E
the facts and circumstances of this particular case, the burden waa on
the defendants to show whether they have been in possession for 12 :r~
<>r more, and dismis..00 the appeal.
On appeal by· special lcav~,
HELD : On the facts of the case Art. 144 and not Art. 142 applied.
If a defendant not only admits title of the plaintiff but also admitst hat he derived possession from the plaintiff as a tenant, the case must
proceed on the defendant's plea, and for the purpose of deciding whether Art. 142 or Art. 144 applied, it must be assumed that the plaln1ilf
ha..-. not been dispossessed or has not discontinued his possession within
the meaning of Art. 142, for neither the plaintiff nor the defendant alleges
di!'JKl&scssion or discontinuation of possession.
124F
....... F]
JaJdhari v. Rajmdra Singh, A.LR. 1958 Pat. 386. approved.
The Official Receh•er of Eust Godavari v. (_'hava Goi•inda Raju, I.L.R.
11~40] Mad. 9.13 and Relrnri I.al v. S11mlar Das. I.LR. (1935) 16 Lah.
442. Jistingui~hcd.
Kumhharn U1kxhmanna v. Tant:ir<ila Vl'11.l.:.n1rswar/11. ( 194849) L.R.
76 I.A. 202 and Scturatnn,,1 Aiynr v. Venk,uacha/;1 Go1uiden, (1919)
LR. 47 I.A. 76, referred to.
Clv11. Art>1·.I.t.ATE JuRt~llt\TION : Civil Appeal No. 625 of
196()
AppeHI hy '!'Cci;il l:;ivc from the judgment and decree dale<l
July 17. !95X. of 1hc Patna High Court, in A~peal from Appellate
Decree No. 890 ,1[ I 954.
F
G
11
..
,.
•
f
'-
,,. -'·\
MST. MURTI v. SURAJDEO (Sikri ]. )
21
A
B. C. Misra, for the appellants.
B
c
D
E
F
G
H
R. V. S. Mani, E. C. Agarwala and P. C. Agarwala, for respondents Nos. l(a) to l(k) and l(m) to l(r).
The Judgment of the Court was delivered by
Sikri J.
One Mohd. Mir Khan brought .a suit in the Court
of the Munsif Aurangabad against a number: of persons for a
declaration that 8 bighas of land under khata No. 22, situate at
Mauza Gopalpur, Dist. Gaya, constituted the bakasht interest of
the plaintiff, who had been in possession and occupation thereof.
and he prayed in the .alternative "that if in the opinion of the Court
the plaintiff be deemed to have been dispossessed from the suit land
under s. 144 (Cr. P.C.), in that case, the plaintiff may be put in
sir possession thereof on dispossession of the defendants and a
decree for future mesne profits from the date of dispossession till
the date of realisation, may also be passed in favour of the plaintiff."
He alleged in the plaint that the said sir land had been in sir possession of the plaintiff and 9.81 acres (including the said 8 bighas) is
recorded in the Record of Rights, i.e., Survey Khaitan,
asthe
bakasht land of the plaintiff. He further alleged that he had sown
seeds in two bighas in the month of A sadh 1353, when defendants
2, 3 and 5 interfered with his possession. Proceedings under s. 144,
Cr. P.C., were started which resulted in a decision against him .
He asserted that the defence of the above defendants ins. 144 proceedings that plots Nos. 587, 832 and 846 and portion of 881 had
been settled by him and that they were in possession, was false.
He further stated.that after the s. I 44 proceedings he grew rabi crop
in the suit land after cultivating the same with his own plough and
bullock and was still in possession but since a clmid had been cast
over the title of the plaintiff due to the decision in s. 144 proceedings, the plaintiff was entitled to get his title to possession over
suit land confirmed by court.
It is apparent from the above recital that, except in the relief
clause, the plaintiff asserted that he had been in possession and
continued to be in possession and that he had title to the land.
It
was in the alternative that he prayed for possession if the plaintiff
be deemed to have been dispossessed.
The defendants in their written statement did not deny the
title of the plaintiff to the suit land but asserted that "the plaintiff
being the only member in his house used to remain outside in some
service and consequently he gave the entire area of the lands in
khata No. 22 to these defendants to cultivate them on batai over
more than 25 years ago, and since then the defendants have been
22
SUPREME COURT REPORTS
{I 965) I S.CR.
and arc in peaceful cultivating ~n
over the same and have A
also acquired occupancy rights in them." They further alleged
they have been dividing crops regularly to the plaintill but the
plaintiff never granted l!llY receipt to them.
The Munsif held that the plaintiff settled the,,e lands with the
defendants some 28 years ago. On the question of possession he B
held that ever since the settlement, the defendants have been in
possession and cultivating the lands, and that the plaintiff since
after the settlement has not been in pos&ession. He concluded that
rhe plaintiff having been out of possession for more than 12 years
was not entitled to possession. He, in consequence, dismissed the
suit with costs.
'The plaintiff appealed and succeeded before the c
Appellate Court.
The Additional Sub-Judge was of the view that
"rhe onus was on the defendants to prove that they were ra/yats of
the lands and that they' had acquired occupancy rights in thcl6e
lands and unless they succeeded in proving these, they could not
successfully resist the plaintiff's suit" After going through the
evidence, he came to the conclusion that the defendants had not
D
been able to prove their case about settlement and i)ossession.
Five defendants appealed to the High Court. It was contended
before the High Court on behalf of the defendants that the Appellate Court bad wrongly put the onus on the defendants, but the
High Court, relying pn Jaldhari v. Rajendra Singh(') did not
E
accede to this contention.
The High Court held that the title of
the plaintiff had been admitted by the defendants and their case
of settlement and possession for 12 years had been rejected by
1 he Appellate Court.
The plaintiff had never alleged that he
!iad been dispossessed.
The learned Judge further observed as
follows:
F
"i\s the defendants never got possession sinee the case of
1he defendant~ have been rejected and the plaintiff havin!!
neYer alleged that he has been dispo:;sessed, it is clear that
once titl~ has been admired by tl1e defendants, on the
pleadings it follows that the landiord is in possession and if
1hc landlord is in possession, on the pleadings of the parties G
in the present case there can be no question of coming to a
formal finding of fact that the plaintiff was in possession bec~use on the plc.1dings the plaintiff never claimed that he
had been ejected or <lir.posscssed and the defendants never
asserted that they forcibly ejected t~e plaintiff."
In conclusion, rhe learned Judge held that having regard to the
H
facts and circumstances of this particular ca,e, the burden was on
II) A.J.R. 1958 Pat. 386.
•
\
,.
t,\ v
MST. MURTI v. SURAJDEO (Sikri ],)
23
A the defendants to show whether they have been in possession for
12 years or more. In the result he dislnissed the appeal. The
defendants having obtained leave· from thi5 Court, the appeal is
4'
now before us for disposal.
•
It has been argued on behalf of the appellants that the Full
B Bench judgment rc;:Iied on by the learned Judge was wrongly
decided and that on the facts of this ca5e, Art. 142 and not Art. 144
governed the case. We are of the opinion that the Full Bench was
correctly decided and that Art. 144 applied to the facts of this case.
The learned counsel for the appellant urged that in an action
in ejectment, one of the things that the plaintiff must prove is
C his title to immediate possession.
This is true and there is no
dispute about this proposition. He further urges that where the
plaintiff does not admit tenancy, although the defendant alleges
tenancy, he must show possession within· 12 years of the suit. He
says that the defendants have admitted title of the plaintiff but not
D
possession. To support his proposition, the learned counsel for the
appellant. apart from Patna cases which have been overruled by
the Full Bench, relied on The Official Receiver of East Godavari v.
Chava Govinda Raiu(') and Behari Lal v. Sumlar Das.('} In
the fonner case. an auction purchaser was obstructed by a person
who claimed it as his own ancestral property. The auction purE
chaser sued for declaration :;tnd injunction. The facts are quite
different and in none of the cases discussed by the learned Chief
Justice in his judgment a defendant had claimed possession under
the plaintiff but had asserted right by adverse possession.
F
G
In Behari Lal v. Sundar Das(2) the facts as stated in the
headnote were these:
"The plaintiffs instituted a suit for possession of a house
against N.B. and N.D., alleging that in 1927 they had
rented the house to N.B., who had sublet it to the defendant
N.D. The plaintiffs stated in the plaint that they were the
owners of the house and that they had instituted a suit
previously for recovery of rent against both the defendants,
but N.D: had asserted his own title to the property and the
suit hnd been dismissed against him, but h~d been decreed
ago.inst N.B.''
The High Court held that the plaintiffs clearly pleaded possession
H
and dispossession, i.e., possession through their tenant N.B. and
dispossession by the latter's sub-tenant N.D., when he set up a
--- ·-----··.
(I) I.L.R. 194-0 Ma<l. 953.
(2) l.L.R. (1935) 16 r alt. «c.
24
SUPREME COURT REPORTS
I 1965) I S.C.R.
title of his own,
Thi£ case is again distinguishable for the subA
tenant had clearly asserted his own title <111d denied that of the
plaintiff.
Another case cited by the learned counsel for the appellant is
Kumbham Lakshmanna v. Tangirala Venkateshwarlu,( 1) in which
the Privy Council reviewed most of its earlier decisions on this
branch of the law. In this case, a holder of a minor inam sued to
8
eject the tenants from the holding, ahd the Privy Council held
that the burden was on the plaintiff to make out a right by proving
that the grant included both the melvaram and kudivaram interests,
·or that the tenants or ,their predecessors were iet into possession
by the inamdar under a terminable lease. One of the cases referred c
to is Seturatnam Aiyar v. Venkatachala Gounden.(') and with
reference to it the board observed at p. 224, as follows :
"In the above case it was either admilled or found as a
fact that the tenants had been Jct into possession by the
landlord \\he: was the a1'solute C'Wner.
When the tcnan1
claims rights of occupancy in such circumstances their
J>
Lordships. in Nainapil/ai Marakayar v. Romanathan Chettiar,(') laid down the principle that the burden will be on
him to prove that he has such rights."
,,..
Is the position the same when the plaintiff docs not admit any
tenancy but the defendant alleges tenancy but of a pennanent
E
nature ? It seems to us that if a defendant not only admits title of
the plaintiff ~ut also ~dmits that he derived posse"ion from the
pl.'lintiff as a tenant, the case mu~t proceed on the defendant's plea,
and for the purpose of drcirling whether Art. 142 or Art. 144
applied, it must be a~sumed thnt the plaintiff has not been dispossessed or has not disc(•ntinued his possession within the meaning
F
of Art. 142, for neither the plaintiff nor the defendant alleges di.~
possession or discontinuation of possession.
Construing the plaint as a whole, it is clear that the plaintiff
never alleged di~·pussession or being out of posscs.sion. He asserted
ownership of the suit land and claimed that he was in possessioo.
(.;
Section 144 Cr. P.C. proceedings seemed to have cast a doubt on
his title and he accordingly brought a suit for a declaration. It is
tme that in the alternative he prayed for a dxrce for possession and
mesne profits.
He was careful even in this alternative prayer to
say that he could only be deemed to he dispossessed by s. 144
proceedings. The <jefendants did not deny the title of the pl~ff
to the suit land but asserted that they had been settled and acquired
H
(I) rl948·49) L.R. 761.A. 202.
(2) (1919) L.R. 471.A. 76.
(l) L.R. 51 I.A. 83.
MST. MURTI V. SURAJDEO (Sikri J.)
25
A occupancy rights. On these facts it seems to us that it was Art. 144
and not Art. 142 that applied.
. In the result, agn;:eing with the High Court, we hold that
the suit was not barred. Accordingly, the appeal fails and is dismiesed, but as there is no finding by the courts below that the
B plaintiff is in possession, the decree will be modified and limited
to a decree .for poss~ssion of the land U:t dispute.
In the circumstances of the case the parties will bear their own
c<>Sts iii this Court.
·
In view of our decision on the question of limitation, it is
not necessary to deal with the point of abatement of the appeal
C
raised by the learned counsel for the respondents.
The appellants will pay court fees, which would have been
paid by them if they have not been permitted to appeal as paupers.
Appeal dismissed and decree modified.