S.S. GANGULY, J.
(1) THIS is an appeal from the judgment and decree passed by the learned Assistant District Judge, 2nd Court, Alipore, 24-Paraganas in Title Suit Nos. 112 and 209 both of 1982.
(2) ADMITTEDLY late Gholam Quadir, the owner in khas possession of the disputed six cottahs of land more or less mentioned in the schedules of the plaints, died sometime in 1959 leaving behind him his widow Feroza Jahan Begum alias Feroza Jahan Quadir, two sons Sultan and Sartaz and four daughters Munawar, Anwar, Quamar and Tajwar who succeeded to the said property according to the rules of Mohammedan Law. Admittedly Abul Kalam (the sole plaintiff in Title Suit No. 209 of 1982) is in possession of the suit land at present along with certain other persons whom he claims to have inducted and they all have been running businesses separately there.
(3) ABUL Kalam filed Title Suit No. 209 of 1982 (originally Title Suit No. 123 of 1981) against Feroza Jahan Begum, Jahrul Islam (the plaintiff in Title Suit No. 112 of 1982) and a few others for permanent injunction restraining them from disturbing with his possession over the disputed land. He claimed to be a thika tenant of the suit land since June 1966. From his plaint and his written statement in Title Suit No. 112 of 1982 his case appears to be the following :-Abul Kalam took the suit land in thika tenancy in June 1966 from Firoza Jahan Begum at a rental of Rs. 200. 00 per month. He has been possessing the same along with the structures. He paid rent to Firoza Jahan Begum but when she refused to accept the same he started depositing the same in the Court of the learned Thika Controller. The deposits of 1967 and 1968 were made by him showing one Abdul Shakoor as the thika tenant. While making these deposits he i. e. , Abul Kalam described himself as the constituted attorney of the said Abdul Shakoor. This was done at the instruction of his learned lawyer since at that time he was carrying on business in the suit land jointly with Abdul Shakoor and held a power of attorney from him. Abul Kalam was compelled to file the suit as Jahurul Islam in collusion with Firoza Jahan Begum and her children was threatening to oust him from the suit land.
(4) THIS suit was contested by Jahurul Islam the plaintiff in Title Suit No. 112 of 1982. His version - as per his written statement in Title Suit No. 209 of 1982 and plaint in Title Suit No. 112 of 1982 - is the following :-Feroza Jahan Begum allowed one Abdul Shakoor to stack drums etc. in the suit land for six months with effect from 1-6-66 at a fee of Rs. 200. 00 per month. She also issued a receipt for Rs. 1,200. 00 in his favour. The receipt specifically mentioned that the land was in vacant state and it also prohibited the licencee to build any structure on it. Abdul Shakoor did not vacate the suit land after six months. On the other hand Rs. 200. 00 pe
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month was deposited with the learned Thika Controller by Abul Kalam himself in 1967 and 1968 describing himself as Abdul Shakoor's constituted attorney and claiming thika tenancy for Abdul Shakoor. Abdul Shakoor surrendered the suit land to Feroza Jahan Begum on 1-5-69. Abul Kalam, however, then trespassed into the suit land in 1975. He somehow managed to get the receipt granted by Firoza Jahan Begum to Abdul Shakoor, erased the name of Abdul Shakoor and put his own name there and he also made other changes in the receipt to suit his convenience, in 1975 he filed another application under S. 17 of the Calcutta Thika Tenancy Act, 1949 claiming to be thika tenant of the suit land himself. (5) ABUL Kalam raised certain unauthorised structure on the suit land in 1967. In a Demolition case the Commissioner, Corporation of Calcutta passed an order of demolition in respect of the middle front portion of the said construction. In another such case a similar order was passed on 27-7-82 for demolition of the rest of the construction. (6) FIROZA Jahan Begum and all her children transferred to Jahurul Islam whatever interest they had in the disputed property. According to Jahurul Islam, Abul Kalam trespassed into suit land in 1975 and raised the structures therein in 1977. But the Trade Licences (Ext. C series) issued by the Calcutta Corporation dating back from 1967-68, Electoral Roll of the suit locality for 1967, Court Deposit Challans (Ext. F series), Assessment Book of Calcutta Corporation (Ext. G), Corporation Tax Receipts, etc. proved that Abul Kalam has been living and carrying on business in the suit land inducting tenants therein since 1966. Jahurul Islam failed to establish his case that Abul Kalam trespassed into the suit land only in 1975 and that he constructed his unauthorised structures therein in 1977. In the circumstances stated "without taking proper recourse in due process of law, defendant No. 1's possession in suit land cannot be disturbed". The learned Judge dismissed Jahurul Islam's Title Suit No. 112 of 1982 and added that the judgment would also govern Abul Kalam's Title Suit No. 209 of 1982. (7) JAHURUL Islam preferred two appeals before this Court against the above judgment and decree of the learned Trial Court. He filed F. A. No. 113 of 1984 against the dismissal of his Title Suit No. 112 of 1982 and he filed F. A. No. 23 of 1985 in view of certain observations made by the learned Judge in the body of the judgment. This Court allowed F. A. No. 113 of 1984 and dismissed F. A. No. 23 of 1985 and sent both the suits back on remand to the learned Court below for afresh disposal within three months after allowing the parties to adduce fresh evidence both documentary and oral and in accordance with the observation in the body of the judgment. In the judgment it was observed clearly and unequivocally that the main point in both the suits was as to whether Abul Kalam was the thika tenant of the suit land under the State since the interest of his superior interestholder had vested in the State and that this point was not dealt with by the learned Trial Judge at all. Certain other deficiencies in procedure were also pointed out. (8) WHEN the suits went back to the Trial Court, Jahurul Islam examined seven new witnesses and Abul Kalam examined eight. In Title Suit No. 209 of 1982 Abul Kalam filed an application for amendment of the plaint by adding to it amongst others a claim based upon adverse possession. This application was rejected upon contested hearing. The findings of the learned trial Judge in the two suits on this occasion may be summarised as follows :-Jahurul Islam purchased the entire suit property from Firoza Jahan Begum and her six children by seven deeds (Ext. 1 to 1 (f)) executed by them or on their behalf on 13-4-81. Since possession follows title, he also must have acquired possession therein. The letters of deeds from Abdul Shakoor showing that he had surrendered the tenancy with regard to the suit land on 1-5-69 (Exts. 2 and 3) confirm this position. Firoza Jahan Begum never admitted Abul Kalam as the thika tenant of the suit land. Abul Kalam based his claim of tenancy on the receipt in Urdu (Ext. A) admittedly granted by Firoza Jahan Begum - alleged by Juhurul Islam to be interpolated - and another receipt (Ext. B) allegedly executed by Md. Mehmood the alleged second husband of Firoza Jahan Begum. (9) THE receipt issued by Firoza Jahan Begum (Ext. A) is a mutilated and tampered document on the face of it. It is not all safe to rely on such a document. As for the receipt issued by Md. Mehmood (Ext. F), this receipt also does not further the case Abul Kalam in any way since it has not been established that the said Md. Mehmood was really the second husband of Firoza Jahan Begum or for that matter that he had any authority to collect rent and issue receipts on behalf of Firoza Jahan Begum. The municipal licences for profession, trade, etc. (Ext. C series) support the factum of Abul Kalam's carrying on business in the suit land but these documents will not prove his alleged thika tenancy. This also applies to the electric supply bills, voters' list (Ext. E), Corporation Assessment Book, LIC Premium Receipts, School Certificates, etc. etc. These documents show that Abul Kalam was an occupier but they do not show that he was a thika tenant. Abul Kalam ought to have summoned and examined Firoza Jahan Begum as a witness to prove his case of thika tenancy. On the other hand there is documentary evidence (Ext. 9) wherefrom it would appear that Abdul Shakoor used to deposit Rs. 200 in respect of the suit land in the office of Thika Controller and that he continued to deposit for sometime. In the verification of this application Abul Kalam was described as the constituted attorney for Abdul Shakoor. Abdul Shakoor confirmed his surrender of the tenancy on 1-5-69 and he categorically asserted that the alleged partnership deed between himself and Abul Kalam dated 9-3-67 was never acted upon. Thus it appears that Abul Kalam had no connection with the business of Abdul Shakoor who was granted leave in respect of the suit land for a limited period. Abul Kalam ought to have examined Abdul Shakoor also and in view of his failrue to do that presumption should be drawn against him. In view of all the circumstances stated above Abul Kalam has failed to establish his plea of thika tenancy. Jahurul Islam on the other hand has established his title and acquisition of ownership in respect of the suit property by purchase from the legal representatives of Golam Quadir the admitted owner of the disputed land. (10) IN view of the above findings the learned Trial Judge gave Jahurul Islam a decree declaring his title to the suit land and for recovery of possession and also for mesne profits from 15-4-81 till the date of decree @ Rs. 100. 00 per diem and further mesne profits as per provisions of O. 20, R. 12 of the Civil P. C. (11) HENCE these two appeals. It is urged from the side of the appellant that the learned Court ought not to have made the adverse finding with regard to the receipt (Ext. A) admittedly granted by Firoza Jahan Begum on the evidence of Jahurul Islam who had no personal knowledge with regard to the same. The Trial Court on the other hand - so it is urged - ought to have held that the appellant had acquired thika tenancy interest in the suit land on the strength of the said receipt and also by adverse possession. (12) IN view of what has been stated above the following points may be framed :-1. Who amongst Abul Kalam and Jahurul Islam has acquired right, title and interest to the suit land? 2. Who amongst the two is entitled to get the (relief) prayed for? decision points Nos. 1 and 2(13) FROM what has been stated above it becomes quite clear that there is no dispute whatsoever that late Gholam Quadir was the lawful owner of the suit land and that on his death his widow Firoza Jahan Begum and his six children through her inherited the same from him according to the rules of Mohammedan Law. Jahurul Islam holds sale deeds (Ext. 1 to 1 (f)) executed by Firoza Jahan Begum and her six children in his favour transferring thereby whatever interest they had in the suit land to him. After his purchase he stands in the shoes of his vendors and the learned Court below has done quite the correct thing, therefore, by placing the burden on Abul Kalam to establish his case. (14) HOW does Abul Kalam discharge his burden? We have seen that he tries to do that by claiming (1) that Firoza Jahan Begum had inducted her (him?) on the suit land as thika tenant thereof and in the alternative (1) that he has acquired limited interest of thika tenant in the suit land by adverse possession. (15) AS for his claim of being inducted into the suit land, the appellant's case is based almost entirely on the receipt (Exts. A and A (I)) granted by Firoza Jahan Begum allegedly in his favour. The learned Court below considered it prudent not to place his reliance on this receipt. Fault is found with him from the side of the appellant for this. It is urged that Firoza Jahan Begum who granted this receipt was the person who alone had competence to say whether the receipt (Exts. A and A (l)) had been mutilated or not and that Jahurul Islam who had nothing to do with the receipt was not at all competent to give any opinion in this regard. One can hardly quarrel with this submission. But it appears from the evidence of the appellant himself that whereabouts of Firoza Jahan Begum were not known when the parties went to trial. It also appears that Firoza Jahan Begum and all her children swore an affidavit together (Ext. 4) whereby they made certain allegations against Abul Kalam and the alleged part played by him with regard to the receipt (Exts. A and A (l)). It is argued that this affidavit cannot take the place of oral testimony of the deponents. The learned trial Judge mentioned this affidavit and noted its recitals. But it does not appear that he placed his reliance on it to arrive at his conclusion regarding the receipt (Exts. A and A (1)). He refused to put his reliance on the receipt as on the very face of it appeared to have been tampered with or mutilated at very significant places. True, the learned Trial Judge opined that the appellant should have examined Firoza Jahan Begum to establish that the receipt (Exts. A and Al) had not been mutilated. Citing Kishori Lall v. Chunilall, (1909) 9 Cal LJ 172, 177); Sardar Gurbaksh Singh v. Gurdial Singh, (1927) 46 Cal LJ 272, 279 and Prigonda Hongoda v. Vishwanath Ganesh, AIR 1956 Bom 251 the learned Advocate for the appellant argues that the learned Trial Judge was quite in the wrong in finding fault with the appellant for not examining Firoza Jahan Begum who happened to be one of the defendants in his suit. The debate loses all significance since Firoza Jahan Begum was not available at the relevant time. Citing Gopal Krishnaji v. Md. Haji Latif, AIR 1968 SC 1413 where it is laid down that the Court ought to draw an adverse inference where the party in possession of the best evidence is not producing it, it is argued that an adverse presumption should be drawn against the respondent, since he failed to produce Firoza Jahan Begum as a witness. We do not find any great merit in this argument also. After her sale Firoza Jahan Begum ceased to have any interest in the suit land and ceased for all practical purpose to be a party to the two suits. The real defendant was Jahurul Islam who stood in her shoes. Since both the parties claimed to have derived their interest in the suit land from Firoza Jahan Begum, one of them cannot find fault with the other for not examining her. All this is really beside the point since it appears that in coming to his conclusion regarding the receipt (Exts. A and A-1), the learned Court below relied upon the appearance of the receipt itself, the letter of surrender executed by Abdul Shakoor in favour of Firoza Jahan Begum (Ext. 2) and the application filed by Abul Kalam to the Thika Controller as the constituted attorney of Abdul Shakoor seeking permission to deposit rent for the suit land for the months of May and June 1967 (Ext. 9). The learned Trial Judge found the receipt (Exts. A and A-1) mutilated on the very face of it and therefore not reliable. We find it very difficult not to agree with him. The receipt is indeed in a very poor shape and on the very face of it appears to have been tampered with in places. Even Mr. Insan Ali (D. W. 2) admits that there are five ink spots on this receipt and there are burn mark, perforation and tears at places. An Urdu knowing witness of the respondent viz. Sk. Nizamuddin (P. W. 8) - a practising Advocate of this Court - transliterated as well as translated this receipt (Exts 18 (a) and 18) and from both it appears that there are marks of erasure and over-writing where the name of Abdul Kalam appears in the receipt. Even Mr. Insan Ali (D. W. 2) admitted that there was an ink spot on the word Kalam in the fourth line and another ink spot and tearing before it and further that due to contact with water, the word Kalam had become smudged. No effort whatsoever was made to explain these circumstances which make the receipt such a suspicion piece of document. Even the appellant himself admits that in two places where his name appears and in three other places in the receipt there are ink spots. It becomes quite clear even from the receipt itself that the name of another person was erased out from the receipt (Exts. A and A-1) and name of Abul Kalam was inserted therein. (16) WHOSE name was replaced by the name of Abul Kalam? To find an answer to this question we have only to look at the application (Ext. 9) filed by Abul Kalam himself before the learned Thika Controller. This application for depositing rent for May and June 1967 was made by Abul Kalam not on his own behalf, but on behalf of Abdul Shakoor. The application was verified by Abul Kalam not as the tenant but as the constituted attorney of Abdul Shakoor. The appellant says in his deposition that Abdul Shakoor gave him a power of attorney by virtue of which he paid rent in the Court of the learned Thika Controller. This statement does not explain at all why did the appellant deposit the rent describing himself as the constituted attorney of Abdul Shakoor if he himself was the tenant. If the rent receipt (Exts. A and A-1) is considered in the background of this application it becomes quite clear that the name of the tenant which was erased out of the receipt was that of Abdul Shakoor. This is the conclusion of the learned Trial Court and we are of the view that he was amply justified in coming to this conclusion. (17) FROM the above it becomes quite clear that it was Abdul Shakoor and not the appellant who was inducted on the suit land by Firoza Jahan Begum. Abdul Shakoor, so it appears, surrendered whatever interest he had in the suit land by a letter of surrender dated 1-5-69 (Ext. 7). The learned Advocate for the appellant refers to S. 8 of the Thika Tenancy Act which requires one month's notice to be served before the surrender. No such notice has been proved in this case though the letter refers to a notice dated 30-11-68 from Firoza Jahan Begum. Since, however, the appellant was not the tenant, we do not think that he can be permitted to make any grievance on this score. (18) WE hasten to add here that we also agree with the learned Court below that even granting that the rent receipt (Ext. B) granted by Mahammed Mahmood was really granted by him, it cannot enure to the benefit of the appellant in any way. This is because it has not been established by satisfactory evidence that Mahammad Mahmood was the second husband of Firoza Jahan Begum or for that matter that he had any authority to accept rent or issue receipt on behalf of Firoza Jahan Begum. (19) WE may also add further that even granting that Firoza Jahan Begum had really settled the suit land that will not do away with all the appellants troubles. This is because Firoza Jahan Begum had only 1 / 8th share in the disputed property. She had no authority to settle up the remaining 7/ 8th shares of the suit land which belonged to her six children. The learned Advocate for. the appellant argues that her children never raised any objection to the settlement made by their mother. That cannot do away with their shares within the suit land. (20) THE appellant's bid to have his case of acquiring title by induction as a tenant having failed we now take up his plea that he had acquired title to the suit land by adverse possession since 1966. The plea has not actually been taken in the plaint in one suit and the written statement in the other. The learned Trial Judge, however, permitted the appellant to raise the plea and he decided the point against the appellant. Considering all the materials on record we find it very difficult to disagree with him.(21) IT is true, as noted by the learned Trial Judge, that the appellant has exhibited a large number of documents to establish that he has been living and carrying on business in the suit land since 1966. We have already mentioned previously what these document are. But then- as pointed out by the learned Trial Judge - in such a case as the present, mere possession even of a trespasser will not constitute adverse possession unless accompanied by open assertion of hostile title; Premendu v. Sripati, AIR 1976 Cal 55; Bhagavathi v. Savarimuthu, AIR 1976 Mad 124; Gaya Parshad, v. Dr. Nirmal Chander, AIR 1984 SC 930. Since when the appellant has been claiming adverse possession in this case?(22) AS we have already seen in 1967 and 1968 the appellant claimed to be nothing besides the constituted attorney of Abdul Shakoor. It is only since May 1975 (Exts. F-1) that he started depositing rent or whatever that may be on his own behalf. It may be taken, therefore that if at all the' appellant set up his own adverse title to the suit land since May 1975. The respondent filed his plaint in his Title Suit No. 112 of 1982 on 16-6-82 i. e. long before the passing of twelve years from the point of time since which the appellant's possession in the suit land became adverse to the interest of the respondent. The appellant's claim to the effect that he acquired title to the suit land by adverse possession also cannot, therefore, be supported. (23) THE learned Advocate for the appellant made a grievance of the fact the learned Trial Judge rejected the appellant's prayer for amendment of his plaint. The petition in this regard was filed on 7-11-86 after the two suits had been sent down on remand. The main facts which the appellant sought to add to his plaint in Title Suit 209 of 1982 are the following :-1. Appellant was put in possession of the suit land by Firoza Jahan Begum in May 1965, he has been living and carrying on business there since that time paying rent to the said landlady (including the occasion when she collected the rent for the months June 197 2/10/1973 producing telegram from her son Sultan for sending money by T. M. O.) undertaking to send adjustment receipt later on. 2. Appellant admitted one Abdul Shakoor as financial partner of his business and on his insistence on getting thika tenancy right in favour of the firm, the appellant had to sign a number of applications without knowing about their contents believing that rent was sought to be deposited in the name of the firm. 3. By exercising adverse possession since May 1965 the appellant has acquired title by adverse possession in the suit land. We have already seen what are the respective cases of the two parties and what evidence have they adduced to establish them. Thus in para 5 of his plaint the appellant pleaded that he had been paying rent directly to Firoza Jahan Begum and that when she refused to accept the rent he started depositing the same in Court. From this one gets the impression as if the appellant had paid rent to Firoza Jahan Begum on a number of occasions. At the time of trial besides the disputed receipt for Rs. 1,200. 00 (Exts. A and A-1), the appellant could not produce any other receipt. It is obviously to remedy this, deficiency that the item No. 1 above was sought to be added to the plaint. (24) IT may also be recalled that the appellant could not offer any explanation at all as to why he had described Abdul Shakoor as the tenant and himself as his constituted attorney in his application before the learned Rent Controller (Ext. 9). Item No. 2 above was sought to be added to neutralise the effect of the said application. (25) IT may also be recalled that the only relief asked for by the appellant in his suit was permanent injunction against the respondents. Item No. 3 was sought to be added as an alternative case. (26) THE learned Trial Judge felt that if he allowed the amendments that would amount to going beyond the limits of the remand order. The learned Advocate for the appellant contends that the learned Judge's view was not correct since the remand in this case being under O. 41, R. 23a was an open remand. The learned Advocate cites Jai Jai Ram Manohar v. National Building, AIR 1969 SC 1267 which lays down that an amendment should not be disallowed merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure provided it can be done without doing injustice to the other party. Citing Panchdeo Narain v. Jyoti, AIR 1983 SC 462 it is argued that the appellant could even withdraw his admission regarding Abdul Shakoor or explain it away. Also is cited Haridas v. Godrej, AIR 1983 SC 319 which lays down that an amendment should be allowed unless serious injustice or irreparable loss is caused to the other side. Also was cited Sanatan v. Hakim Mohammad, AIR 1977 Orissa 194 a case involving as in the case at hand, a remand under O. 41, R. 23-A of the Civil P. C. It was observed in this case that when sent back on remand a suit is relegated to the stage of trial when trial has commenced but is not concluded. Observing that the order of remand did not prohibit amendment where a case for amendment arose it was held that the desired relief could be made available in that case. Weighty decisions these, one can hardly quarrel with the propositions laid down by them. We are of the view, however, that they have no application to the facts of the present case. The remand order passed in this case was one under O. 41, R. 23-A no doubt, but the suits were sent back with a direction on the learned Trial Court to come to a definite finding on the main or rather the only point in issue viz. , whether the appellant was the thika tenant of the suit land, after allowing the parties to adduce fresh evidence. This direction may cover a bona fide amendment; but, it will not cover filling up holes in one's case revealed by the first trial and we have already seen that that was why the prayer for amendment was made in this case. As for the proposed amendment for adding to the plaint the plea of acquisition of title by adverse possession it must be said that even though the prayer for amendment on this score was disallowed, the learned Court below considered the point all the same on the materials on record. We have also done that. The appellant has not, therefore, been affected by the rejection of his prayer for amendment regarding adverse possession. Considering all the circumstances we are of the opinion that the learned Trial Court did nothing wrong by rejecting the appellant's petition for amendment. (27) LASTLY it is urged that the learned Court below made a mistake by allowing mesne profits to the respondent @ Rs. 100. 00 per diem with effect from 15-4-81 without any evidence on that point whatsoever. The learned Court below allowed mesne profits as prayed for by the respondent since he was of the view that there was enough evidence on record showing that the appellant has been deriving sufficient income from the suit property in the shape of rent and profits from his business. However, no evidence directly on the point was adduced by either party and we are of the view, therefore, that the learned Court should not have decided the point finally. Even the respondent asked for a decree tentatively for Rs. 5,000. 00 apart from claiming mesne profits @ Rs. 100. 00 per diem. The learned Trial Judge's decree on mesne profits may, therefore, be modified accordingly. (28) IN view of what has been stated above we are of the opinion that both the appeals should be dismissed as the appellant has not been able to substantiate his case of having acquired title to the suit land as thika tenant thereof subject only to this that the decree passed by the learned Trial Judge on mesne profit shall stand modified. In the circumstances stated, it is hereby ordered, that the judgment and decree passed by the learned Trial Judge in Title Suit No. 112 of 1982 and Title Suit No. 209 of 1982 of the Second Court of the Assistant District Judge, Alipore, 24-Paraganas (South) are hereby confirmed subject to this, however, that for the period from 15-4-81 up to the date of this judgment the respondent Jahurul Islam shall get a decree for mesne profit provisionally for an amount of Rs. 5,000. 00 and further that the mesne profits for the said period as well as the period following shall be determined finally under the provisions of O. 20, R. 12 of the Civil P. C. and the respondent Jahurul Islam shall get a decree for the said amount on payment of proper Court fees. Subject to this modification both the appeals are hereby dismissed on contest without any costs to either party. This judgment and decree shall cover both F. A. No. 78 of 1989 and F. A. I. No. 1866 of 1989. The operation of this judgment and decree shall remain stayed till the expiry of 31-12-90. This time limit will not stand in the way of the appellant's complying with the operative part of this decree before the expiry of 31-12-90. (29) MANABENDRA NATH ROY, J. , I agree. Order accordingly.
"1991 AIR (Cal) 132" == "1991 (95) CalWN 536"