Allahabad High Court
Krishna Chandra And 10 Ors. vs Smt. Sarju Dei And 10 Ors. on 23 July, 2020
Equivalent citations: AIR 2020 (NOC) 882 (ALL.), AIRONLINE 2020 ALL 1598
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 07.07.2020 Delivered on 23.07.2020 A.F.R. Court No. - 8 Case :- SECOND APPEAL No. - 7 of 2008 Appellants :- 1. Krishna Chandra, Son of Phool Chandra, 2. Sushil Kumar (Sunil Kumar) } 3. Manoj Kumar }Sons of Prem Chandra. 4. Ravi Kumar } 5. Deep Chandra, S/o Dargahi 6. Ms. Madhuri } Daughters of 7. Ms. Kusum } Phool Chandra 8. Ms. Nisha Devi } Daughters of 9. Ms. Anju Devi } Prem Chandra 10. Ms. Babli @ Asha Dei Appellants No. 1 to 10 are resident of Mohalla Parkinsganj, House No. 618, Makdoom Ram Road, City and District Sultanpur. 11. Raj Kumar, S/o Chamela Devi and Shri Ram Abhilakh, resident of Augesh Road, Durga Bazar Khat, Mirzapur, Pargana, Tehsil and District Mirzapur. Versus Respondents :- 1. Smt. Sarju Dei (died), Widow of Durga Prasad 2. Trijugi Narain } 3. Ramjee } Sons of Durga Prasad 4. Raj Kumar } 5. Smt. Munni Devi, Wife of Hirday Ram 6. Mohit Kumar, Son of Hirday Ram 7. Gomti Devi } 8. Dasharath Devi } Daughters of Durga Prasad 9. Sangeeta Devi } 10. Rani Devi 11. Bhaiya Ram (died), Son of Bindeshwari 11/1. Smt. Urmila, Widow of late Bhaiya Ram 11/2. Dilip } Sons of late 11/3. Hardip } Bhaiya Ram All residents of Mohalla Civil Lines, Sadar City Sultanpur, Pargana Miranpur, Tehsil Sadar, District Sultanpur. Counsel for Appellant :- D.C.Mukerjee,Mohammad Aslam Khan Counsel for Respondent :- S.K.Mehrotra,Anurag Srivastava,I.D.Shukla,Ishwar Dutt Shukla,Santosh Kumar Mehrotra Hon'ble Virendra Kumar-II,J.
1. Heard Shri Mohammad Arif Khan, learned Senior Counsel, assisted by Shri Mohammad Aslam Khan and Shri Mohiuddin Khan, learned counsel for the appellants and Sri I.D.Shukla, learned counsel for the respondents.
2. The present Second Appeal No. 7 of 2008: Krishna Chandra and others Vs. Smt. Sarju Devi (since dead) and others, has been preferred assailing impugned judgment and decree dated 26.09.2007 delivered by the Court of Civil Judge (Senior Division), Court No. 15, Sultanpur in Civil Appeal No. 45 of 1970.
3. The first appellate court has set aside judgment and decree dated 28.02.1970 delivered by the Court of Munsif (South), Sultanpur in Regular Suit No. 209 of 1963, by which suit of respondents/ plaintiffs was dismissed. During pendency of original suit before the trial court defendant No.1-Dargahi had expired and his legal representatives were substituted. The present matter was decided by learned trial Court Munsif South Sultanpur vide judgment dated 28.02.1970. The appellants assailed impugned judgment dated 28.02.1970 in Civil Appeal No. 45 of 1970.
4. Learned District Judge, Sultanpur dismissed aforesaid Appeal No. 45 of 1970 vide impugned judgment dated 10.11.1970. The plaintiffs/respondents preferred Second Appeal No. 2585 of 1970: Durga Prasad and another Vs. Dargahi and others, before this Court, which was decided on 01.08.1980 by coordinate Bench and matter was remanded to the first appellant court.
Therefore, Civil Appeal No. 45 of 1970 was again decided by first appellate court of Additional Civil Judge-II, Sultanpur vide impugned judgment dated 09.09.1986. The first appellate court again dismissed the suit of plaintiffs/respondents. Hence, Durga Prasad (since dead) through his legal representatives Sarju Devi and Bhaiya Ram preferred Second Appeal No. 677 of 1986 : Durga Prasad and another Vs. Smt. Chameli Devi and others. This court decided Second Appeal No. 677 of 1986 on 16.12.2004 and again remanded the matter to the first appellate court.
5. The appellants of present second appeal preferred Special Appeal to Leave (Civil) assailing judgment dated 16.12.2004 passed by this court in Second Appeal No. 677 of 1986. Hon'ble Apex Court had dismissed it on 26.04.2005.
6. The first appellate court of Civil Judge (Senior Judge), Court No. 15, Sultanpur again decided Civil Appeal No. 45 of 1970 and delivered impugned judgment and order dated 26.09.2007. Learned first appellate court has set aside impugned judgment dated 28.02.1970 delivered by the trial court of Munsif South, Sultanpur and decreed the suit of plaintiffs. Learned first appellate court has directed to the appellants/defendants to vacate the disputed house within one month from the date of judgment.
7. The appellants/defendants have preferred present second appeal assailing impugned judgment and order dated 26.09.2007 delivered by first appellate court.
8. It is pertinent to mention here that during proceedings of Second Appeal No. 2585 of 1970 and Second Appeal No. 677 of 1986 and proceedings of Appeal No. 45 of 1970, original plaintiffs and defendants have expired and their legal representatives have been substituted.
9. In Second Appeal No. 7 of 2008, originally Durga Prasad and Bhaiya Ram were the plaintiffs and Dargahi, Phool Chand, and Prem Chand, Deep Chand were defendants, out of them Durga Prasad and Bhaiya Ram-plaintiffs and Dargahi, Phool Chand and Prem Chand defendants have expired.
10. The present appeal was admitted on 25.05.2009 and coordinate Bench has passed order dated 25.05.2009 and formulated substantial question of law after hearing learned counsel for the appellants. The order dated 25.05.2009 is reproduced hereunder:
"Heard Sri D.C. Mukherjee, learned counsel for the appellants and Sri S.K. Mehrotra, Advocate who has put in appearance on behalf of the caveator-respondents.
Learned counsel for the appellants argued that by order dated 16.12.2004, passed in Second Appeal No. 677 of 1984, the another Bench of this Court remanded the First Appeal to the Court of District Judge, Sultanpur to decide the appeal afresh; that despite the directions of this Court that the appeal be decided by the District Judge, the appeal was decided by the Civil Judge, Senior Division. Relying upon a decision reported in 2005 (98) RD 389, Rama Kant Vs. Board of Revenue, U.P. At Allahabad as well as another decision reported in AIR 1923 Madras 351, Uthjuman smmal and another Vs. Naina Mahomed Rowther the learned counsel for the appellants argued that, thus, the First Appeal was decided against the directions given by this Court.
The order dated 16.12.2004, passed by the another bench of this Court reveals that the Second Appeal No. 677 of 1984 was against the appellate judgment passed by 2nd Addl. Civil Judge. The valuation of this suit and appeal was only Rs. 4000/-. No reason is stated in the order dated 16.12.2004 as to why the appeal be not decided by the appellate court, having jurisdiction and why it should be heard and disposed of by the District Judge or Addl. District Judge.
It appears that since majority of the judgments assailed in Second Appeal are the judgments given by the District Judge or Addl. District Judge, hence, under that impression, it was inadvertently dictated that the appeal be decided afresh by the District Judge.
The impugned judgment was given by the Court having appellate jurisdiction over the mater. The Bench by which the order dated 16.12.2004 was passed, did not intend that the appeal be not disposed of by the Court having jurisdiction over the First Appeal. The point regarding jurisdiction has, therefore, no force. The appeal cannot be admitted on this point.
The another point raised by the learned counsel for the appellants is that a Death Certificate of Harishchandra having signatures and seal of the Issuing Authority was lost or misplaced in the Court, hence, it was re-constructed. That the First Appellate Court by the impugned judgment declined to rely upon such re-constructed Death Certificate giving reasons that the death certificate has no signature or seal of the Issuing Authority. He argued that the Death Certificate has the crucial impact upon the judgment of the court below.
Learned counsel for the caveator-respondents, on the other hand, argued that death of Sri Harishchandra has no crucial impact upon the judgment of the court below. On being asked, the learned counsel for the caveator-respondents refused to admit that the death certificate of Harishchandra contains true and correct information.
The appeal is admitted.
The substantial question of law involved in this appeal is, (i) "Whether rejection of the re-constructed Death Certificate of Harishchandra on the ground that it has no signature or seal of the Issuing Authority, is legally correct and sustainable."
Since Sri S.K. Mehrotra represents all the respondents, there is no need of issuing notices to them.
The Original Suit was filed in the year 1963 and it was decided in the year 1971. The matter came repeatedly to this Court while it was pending in First Appellate Court. Therefore, there is great need that this Second Appeal be decided on top priority.
Summon the lower court record within two weeks through courier or in any other efficient manner.
List in 2nd week of July, 2009 peremptorily for final hearing.
The operation and implementation of the impugned judgment and decree dated 26.09.2007, passed by Civil Judge (S.D.), Sultanpur shall remain stayed till next date of listing."
11. It is pertinent to mention here that this Court remanded the matter twice to the first appellate court. For the first time vide order dated 01.08.1980 passed in Second Appeal No. 2585 of 1970: Durga Prasad and another Vs. Dargahi and others. The order dated 01.08.1980 is reproduced hereunder:
"The present second appeal has been filed by the plaintiffs. Admitted fact of the case are that the house was purchased by a sale-deed dated 12.9.1919 by two brothers Bhagwan Das and Sita Ram. These brothers were separate and not members of joint family at that time. On 19.2.1920 Bhagwan Das executed a sale deed in favour of Sita Ram in respect of half share in the disputed house. Subsequently he expired in 1926. The defendants in the instant case are the sons and grandsons of Bhagwandas. According to the plff, he had granted a licence to the defendants as they were the brothers son and they were in occupation of a portion of the house as licensees of the plaintiffs.
According to the plaint the licence was granted in the year, 1955. The licence having been revoked, the defendants were liable to be ejected.
The defence was that the sale-deed executed by Bhagwandas was a fictitious document and not a real document. It was claimed that the defendants were in possession of the property in their own right or in the alternative in adverse possession.
The trial court found that the defendants were residing in the house from before 1955 and had matured title by adverse possession. The lower appellate court, however, found that the principal defendant Dargahi was brought up by Sita Ram and his wife, alter death of Bhagwan Das. However, the Court below held that the question of a adverse possession was not Rightly decided by the Munsif. He also held that the findings of the trial court that the licence was not proved and, therefore, the defendants were in adverse possession was also erroneous. However, without going into the question of the fictitious nature of the deed of the year, 1920, it held just in one line that the deed of 1920 executed by Bhagwandas in favour of Sitaram was fictitious.
After hearing the learned counsel for the parties, I find that the case has not at all been dealt within a correct manner by the court below. I have seen the sale-deed of the year, 1920, paper no.l1 executed by Bhagwan Das in favour of Sitaram in presence of the Sub-Registrar. The court below has also found that Dargahi was brought up by Sita Ram himself. The title of Sitaram was never before denied by the defendants. Thus title of Sitaram remained untarnished. Under the circumstances articles 65 of the Limitation Act could be applicable and not article 64. The suit was based on title and under Article 65 of the Limitation Act, the adverse possession can mature from the date when the title of the defendant becomes adverse to the plaintiff. I find that stair case, open space and other things shown in the map, which is a part of the plaint and a part of the decree are common. The plaintiff has not been excluded from those common portion by the defendant. For possession being adverse it was essential that the plff. Should have been denied access to the property. Further the finding that the defendant was residing with Sitaram and was brought up by him and his wife would certainly go to prove a case of implied licence. The lower appellate court has also held that there was no licence. However, I find that the matter, in view of Article 64 and 65 of the Limitation Act has to be decided in view of the evidence on record.
I, however, find that the plff - pleaded that the license was granted to Dargahi in the year, 1955. The court below has rejected the plft's case on the ground that this Dargahi was proved to have been residing in the Mohalla or in the house from before do not go to prove the adverse nature of the defendant. The possession could be adverse only from the date when it was not claimed by the defendant and not from any imaginary point of time. The sale deed of 1920 is binding on Dargahi and his heirs. It is not disputed that Bhagwandas had executed the sale - deed.
Under the circumstances the judgment and decree passed by the lower appellate court, dismissing the suit of the plff. is set aside and the case is sent down to it for deciding it afresh in accordance with law and observations made above. As the case is being remanded to the lower appellate court and the judgment and decree under appeal has been set aside, the appellant will be entitled to a refund of the court fee paid on the names of the appeal under section 13 of the court fees Act."
12. This court in Second Appeal No. 677 of 1986: Durga Prasad (deceased) and another Vs. Smt. Chamela Devi and others, passed the order dated 16.12.2004, which is as follows:
"1. This is second appeal under Section 100 of Code of Civil Procedure against the judgment and decree dated 9.9.86 in Civil Appeal No. 45 of 1970 passed by IInd Addl. Civil Judge, Sultanpur dismissing the appeal against the judgment and decree dated 28.2.1970 in Regular suit No. 209 of 1963 passed by Munsif South Sultanpur dismissing the suit.
2. I have heard Shri S. K. Mehrotra for the plaintiffs - appellants and Shri PN. Mathur for the defendants - respondents.
Plaintiffs' case
3. The plaintiffs - appellants filed a suit for possession against Dargahi predecessor of the respondents and his sons alleging therein that Ramanand original owner of the house in dispute executed a sale deed dated 12. 9. 1919 selling the above house for Rs. 2,000 / - to Sitaram predecessor of the plaintiff and Bhagwan Das Predecessor of the defendants who were real brother. The sale deed was registered on 18.10.1919 and possession of the house was delivered after sale. Bhagwan Das and Sitaram had half share each in the house. Bhagwan Das sold his half share in the house to Sitaram for Rs. 1, 000 / by registered sale deed dated 19.2.1920 and delivered the possession of his share to Sitaram and since then Sitaram has been the owner of the entire house. It is alleged that in 1926, Sitaram reconstructed the house. The defendant no. 1 Dargahi (deceased) came to occupy the portion of the disputed house as a licensee of the plaintiffs in 1955. Plaintiffs revoked the above license the above license vide notice dated 24.4.1963 but the defendant did not vacate it.
Defendants' case
4. The case of the defendants is that they are the co-sharers of the house and the sale deed executed by Bhagwan Das dated 19.12.1920 was a sham document which was executed only with the object of saving the share of Bhagwan Das from passing to his third wife on the death of Bhagwan Das. The case of the licence was denied and plea of adverse possession was taken.
Finding of the trial court
5. The trial court rejected the plaintiffs' case of grant of licence and defendants' case of adverse possession. But the plea of co-ownership taken by the defendants was accepted and the suit was dismissed.
6. Plaintiffs filed the first appeal which was dismissed. The plaintiffs - appellants filed second appeal no. 2585 of 1970 and the judgment and decree of the first appellate court dated 1.8.1980 was set aside and the matter was remanded. It is after the remand that the judgment dated 9.9.1986 has been passed Civil Appeal No. 45 of 1970; Durga Prasad and others Vs. Chameli and others which has been impugned in this second appeal.
Substantial question of law
7. The following substantial question of law were formulated on 19.2.1987:
"Whether the learned court below has given contrary findings on certain points which were already concluded by the order of the High Court through which the case was remanded."
8. After hearing the learned counsel for the parties and the perusal of the judgment of this court in earlier second appeal no. 2585 of 1970, I find that there is a concluded finding of the court that the sale deed dated 19.2.1920 is binding on Dargahi and his heirs and it is not disputed that Bhagwan Das had executed a sale deed. Just contrary to this finding, the first appellate court has given the finding that sale deed is a Sham transaction. The High Court has held that title of Sitaram was never denied by the defendants and thus title of Sitaram remains untarnished. Under the circumstances, Article 65 of the Limitation Act could be applicable and not Article 64 of the Limitation Act. It was also held that from the position of the passage etc. it is established that plaintiffs were never excluded from the common portion by the defendants. For possession being adverse, it was essential that the plaintiffs should have been denied access to the property. It was also held that the defendants were residing with Sitaram and were brought up by him and it certainly goes to prove the case of implied licence.
9. It was also held that the rejection of the plaintiffs' plea of licence on the ground that Dargahi was proved to be residing in Mohalla or in house from before, dies does not prove adverse nature of possession and possession could be adverse from the date when it is so claimed by the defendants and not from any imaginary point.
10. Learned counsel for the defendants- respondents Shri P.N. Mathur has also conceded that it appears that the first appellate court has not looked into the judgment of this Court dated 1.8.1980 in Second appeal no. 2585 of 1970.
Finding on substantial question
11. I am of the view that the first appellate court cannot go beyond the findings recorded by this court in second appeal at the time of remand of the matter. Therefore, the judgment of the trial court being contrary to the finding concluded by this court in the earlier judgment dated 1.8.1980 in the second appeal arising out of the same suit is to be set aside.
12. In view of the above the appeal is allowed. The impugned judgment and decree dated 9.9.1986 passed in civil appeal no. 45 of 1970: Durga Prasad and others Vs. Chameli and others is hereby set aside. Appeal is remanded to the District Judge Sultanpur to decide it afresh after hearing both the parties and after keeping in view the judgment of this court dated 1.8.1980 given in second appeal no. 2585 of 1970: Durga Prasad and other Vs. Dargahi and others. Costs easy."
13. Earlier the appellants of present appeal preferred the aforesaid Special Leave to Appeal (Civil) before the Hon'ble Apex Court. Hon'ble Apex Court dismissed Special Appeal vide order dated 26.04.2005, which is as follows:
"Permission to file Special Leave Petition is granted.
We are not inclined to interfere with the impugned order of the High Court. However, in view of the delay which has already taken place, it is directed that the first appellate court shall hear and decide the appeal expeditiously by giving an out of turn date of hearing in the matter.
The special leave petition is dismissed."
14. On 17.02.2020 the following additional substantial question of law has been framed:
"(ii) Whether in any view of the matter the impugned judgment and decree passed by learned lower appellate court is illegal, perverse and against the evidence brought on record arises as additional substantial question of law."
15. Learned Senior Counsel has argued on the basis of grounds of present second appeal that the present second appeal has been preferred by the appellants assailing impugned judgment dated 26.09.2007 on the grounds that first appellate court acted illegally and with material irregularity in reversing the judgment delivered by the learned trial Court. The learned trial court has disbelieved evidence of plaintiffs' witnesses. Learned first appellate court has not assigned any reason for taking different view. The present original suit was filed on 22.08.1963, therefore, provisions of Article 142 and 144 of old Limitation Act, prior to its amendment of 1963 were applicable, which were materially and substantially different than those of Article 65 of new Act. Learned first appellate court committed manifest error in misinterpreting the provisions of Article 144 of old Act in the light of new Article 65 of Amendment Act, which was not applicable to the facts narrated in the plaint.
16. It is also pleaded in grounds of appeal that first appellate court committed manifest error of law in rejecting the Death Certificate of Harishchandra son of original defendant no.1 on the ground that said certificate did not bear seal and signature of any authority and is only signed by the original defendant losing sight of the fact that the original certificate which was filed was sealed and signed by the authority, which were lost by the court officials and its copy was reconstructed and kept on record under the orders of the court. Therefore, first appellate Court has drawn wrong conclusion.
17. It is also mentioned in grounds of appeal that first appellate court illegally and with material irregularity in completely ignoring and not considering another material documents brought on record by the plaintiffs (Ex 25) a copy of written statement filed in S.C.C. Suit No. 20 of 1953 and its degree (Ex 26). These documents were considered and relied upon by the learned trial Court for holding that the defendant No. 1 had been residing in the house in dispute from much before the alleged license was created falsifying the case of the plaintiffs.
18. Learned counsel for appellants further argued that the first appellate court has not considered that rights of appellants/defendants matured and perfected by their adverse possession on the disputed house. The first appellate court has not considered this fact that ancestor of appellants Sri Bhagwan Das on the date of execution of sale deed dated 19.02.1920 had not delivered the possession to Sita Ram-ancestor of the plaintiffs. Sri Bhagwan Das continued to occupying the disputed house during his life time and thereafter the defendant Dargahi (since dead) continued his possession till his death and thereafter appellants are continuing in possession.
19. It is further argued and pleaded by appellants that learned Civil Judge (Senior Division) Sultanpur had no jurisdiction to hear and decide the civil appeal contrary to the specific direction given by this Court for deciding the appeal after remand by the District Judge himself.
20. On the basis of aforesaid grounds the impugned judgment and decree delivered by learned first appellate court been termed by the appellants as illegal, perverse and against the material available on record.
21. In the grounds of appeal, learned counsel for the appellants have formulated seven substantial questions of law, whereas as mentioned above, only two substantial questions of law were framed by this court and admitted present appeal on the aforesaid two substantial questions of law only.
22. This court has discarded arguments of learned counsel for the appellants that first appellate court of Civil Judge (Senior Judge), Court No. 15, Sultanpur was not competent to decide present appeal, because this court vide order dated 16.12.2004 directed to the District Judge, Sultanpur to decide appeal No. 45 of 1970: Durga Prasad and others Vs. Chameli and others himself.
23. This court at the point of time of admission of present appeal vide order dated 25.05.2009 has specifically observed as follows:
"The order dated 16.12.2004, passed by the another bench of this Court reveals that the Second Appeal No. 677 of 1984 was against the appellate judgment passed by 2nd Addl. Civil Judge. The valuation of this suit and appeal was only Rs. 4000/-. No reason is stated in the order dated 16.12.2004 as to why the appeal be not decided by the appellate court, having jurisdiction and why it should be heard and disposed of by the District Judge or Addl. District Judge.
It appears that since majority of the judgments assailed in Second Appeal are the judgments given by the District Judge or Addl. District Judge, hence, under that impression, it was inadvertently dictated that the appeal be decided afresh by the District Judge.
The impugned judgment was given by the Court having appellate jurisdiction over the mater. The Bench by which the order dated 16.12.2004 was passed, did not intend that the appeal be not disposed of by the Court having jurisdiction over the First Appeal. The point regarding jurisdiction has, therefore, no force. The appeal cannot be admitted on this point."
24. I have heard learned counsel for the appellants and learned counsel for the respondents. They concluded their arguments on 26.02.2020.
25. At the point of time of preparing judgment it was revealed that Exhibits-4 to 8 and 12 to 26 and the Exhibits-A-2 to A-7 and A-12 have been misplaced or weeded out by the trial court. It was reported by the concerned clerk that Natthi-Ga has been weeded out, therefore, vide order dated 16.03.2020 the District Judge, Sultanpur was directed to inquire into the matter and a report was called for whether reconstruction of these aforesaid exhibits was possible or not. It was also directed to fix the responsibility of the concerned employee regarding misplacement of aforesaid exhibits. District Judge, Sultanpur, has reported on 09.06.2020 that the Assistant Record Keeper has weeded out the Natthi-Ga of Regular Suit No. 209 of 1963 on 09.01.1979. The learned District Judge has also examined Shri Abdul Kareem, Advocate, engaged on behalf of plaintiff and Shri O. P. Lal, Advocate, engaged on behalf of defendant. Both the learned counsels have apprised the learned District Judge that they have no copy of the aforesaid documents weeded out by the Assistant Record Keeper. The District Judge has also reported that Assistant Record Keeper, Shri Ram Prakash Srivastava has expired on 10.11.1990 after taking V.R.S. on 20.07.1990. His wife is getting family pension.
In the aforesaid circumstances, the District Judge has reported that reconstruction of Exhibits-4 to 8 and 12 to 26 and the Exhibits-A-2 to A-7 and A-12 is not possible.
26. Learned counsel for appellants Shri Mohammad Aslam Khan and the learned counsel for respondents, Shri I. D. Shukla, have also stated at the Bar that they have no copy of the aforesaid exhibits and the present second appeal may be decided on the basis of material available on record.
27. I have perused record of Original Suit No. 209 of 1963: Durga Prasad (since dead) and others Vs. Dargahi (since dead) and others and record of First Appeal No. 45 of 1970: Durga Prasad (since dead) and others Vs. Dargahi (since dead) and others.
28. The original plaintiffs Durga Prasad and Bhaiya Ram instituted Original Suit No. 269 of 1963 on 22.08.1963 along with plaint map, in which portion of disputed house in possession of defendant Dargahi, Phool Chand, Prem Chand and Deep Chand was marked by "red colour".
Factual Matrix:
29. The brief facts contended by the plaintiffs in their plaint are that House No. 618 (A) Khata No. 620 situated in Mohalla Parkinsganj city Sultanpur was owned by one Ram Anand son of Baladin Kalwar, who sold it to Sita Ram and Bhagwan Das by means of sale deed dated 12.09.1919 for consideration of amount of Rs. 2,000/-. At this point of time Sita Ram and Bhagwan Das were living separately. Bhagwan Das and Sita Ram were having equal share in the house purchased by them.
30. It is further pleaded that Bhagwan Das sold his half share in the disputed house to Sita Ram, who is grand father of plaintiffs by means of registered sale deed dated 19.02.1920 for consideration of Rs. 1000/- and delivered possession to Sita Ram. Therefore, Sita Ram became the owner of entire house. The ancestor (Sita Ram) of plaintiffs demolished the house purchased by them and renovated it in the month of April, 1926 in accordance with a map approved by Municipal Board, Sultanpur.
31. It is also mentioned in grounds of plaint that Sita Ram died nearly 27 years back leaving behind his son Bindeshwari, who was father of the plaintiffs and nearest heirs of Sita Ram. Bindeshwari expired in the year 1954 and plaintiffs inherited the disputed house. Their names were mutated on the entire house in place of Bindeshwari. The grand father of plaintiff, their father paid and now the plaintiffs were paying House Tax and Water Tax and carried out whitewashing and repairing in it.
32. It is further pleaded that disputed house consists of seven portion of which disputed portions "A" and "C" of the house in dispute are shown in sketch map/plaint map. Five other portions are in possession of tenants. Names of tenants is mentioned in para 6 of the plaint. The disputed accommodation in possession of defendants/appellants has been numbered by Municipal Board, Sultanpur as 227A and 227C.
33. It is further pleaded that disputed portion of house of plaintiffs was given on licence in the year 1955 to defendant No. 1 to live in these portions.
34. The plaintiffs were not intending to keep defendants in the disputed portion of house as licencee. Therefore, they gave notice on 24.04.1963, which was served on defendant No.1 Dargahi (since dead) on 25.04.1963. The plaintiffs asked defendants to vacate within a month, failing which, it was informed that legal action would be taken against them. The condition of license has been mentioned by plaintiffs in para-7 of the plaint.
35. The defendants instead of vacating disputed portion they expressed that they are co-owners of disputed house along with the plaintiffs and they are not willing to vacate. Hence, plaintiffs instituted the present suit.
36. During pendency of original suit, the trial Court passed order dated 09.08.1967, 16.03.1967 and 17.04.1967, on the basis of which, under orders passed by trial court, plaint was amended and on the basis of market value, valuation of suit for the purpose of payment of court fees was mentioned as amount of Rs. 4,000/- and court fees amounting to Rs. 537.50 was paid by the plaintiffs.
37. On the basis of above mentioned grounds plaintiffs sought relief for decree of possession of the portion in occupation of the defendants along with cost.
38. The defendant Nos. 1 to 3 filed their written statement, paper No.-30 Ka, jointly and defendant No. 4 filed written statement 33Ka through his guardian. In both the written statement all defendants made same contentions. In the grounds it has been mentioned that Bhagwan Das and Sita Ram had not partitioned the disputed house in the year (1919) or after it. Bhagwan Das had not sold his half share in the disputed house to Sita Ram nor he was ever ousted from it. The ancestor of the defendants Bhagwan Das had been living in the disputed portion of house purchased by him until his death. Bhagwan Das has expired. The defendants are in possession of the disputed accommodation as owners thereof.
39. It is further pleaded that Bhagwan Das died in the year 1924, when defendant No. 1 Dargahi was only 07-08 years old, hence he was brought up by Sita Ram. Sita Ram and Bhagwan Das were real brothers and at the point of time of death of Bhagwan Das they were members of joint family. It is also mentioned in written statement that mother of defendant No. 1 Dargahi expired in the year 1916, when he was six months old. Smt. Mera wife of Sita Ram brought him up.
40. It is further pleaded by defendant that Bhagwan Das solemnized his second marriage, but his second wife died issueless, then Bhagwan Das again solemnized marriage with Smt. Lakhpati. Bhagwan Das fell ill and suffered from Tuberculosis. Smt. Lakhpati was young lady, therefore, Bhagwan Das and Sita Ram got executed sham sale deed dated 19.02.1920 only to save property of Bhagwan Das from Smt. Lakhpati. In fact Bhagwan Das had not intended to sell his share in disputed property nor delivered possession to Sita Ram. The sale deed is fictitious and forged one. Bhagwan Das was younger brother of Sita Ram and was under his influence. Therefore, sale deed executed by him does not extend any benefit to the plaintiffs.
41. The defendants admitted the contentions of plaint that Sita Ram was father of Bindeshwari Prasad and plaintiffs are their descendants. It is further pleaded that defendant No.1 Dargahi was nephew of Sita Ram, therefore, he was also his heir.
42. It is pertinent to mention here that the defendant Nos. 1 to 3 has mentioned contradictory pleadings in para 4 and para 15 of written statement 30 Ka. In para-4, defendant-Dargahi contended that he resided in the disputed house purchased by his father continuously after purchase and since death of Sita Ram plaintiffs were in possession of disputed house. Whereas in para 15 he has pleaded that defendant Dargahi resided in the house with plaintiff, in which, they are residing at present and they were doing business in this house.
43. The defendants have pleaded alternatively that they are residing in the disputed house on the basis of adverse possession for more than 12 years. Therefore, they have perfected their title in the house and they are in possession of it as owner. Both parties are still the member of joint family.
44. In para 6 it is contended that plaintiff and defendants were doing joint business in the shop situated in the disputed house. This fair price shop was closed in the year 1942 and there was loss in the business. Therefore, "Kothari" in which goods were stored, were given on rent to different persons due to financial constraints.
45. The defendants had denied this fact that disputed portion of the house was given to them on licencee in the year 1955. The conditions of licencees mentioned in para 7 of the plaint were also denied. They disclosed their right of ownership in respect of the disputed house. It is mentioned in para 9 that plaintiffs should have instituted suit for partition. It is also pleaded by defendant No.1 that his sons defendant Nos. 2 to 4 were residing with him in the disputed portion of house and were doing business with him.
46. Defendant No.4 has mentioned same facts in his written statement 33-Ka, which were narrated by defendant Nos. 1 to 3 in their written statement. The defendants filed written statement, paper No.-176Ka and 184-Ka regarding valuation of suit and payment of court fee.
47. Learned trial Court framed following issues on the basis of pleadings of both parties:
"(1) Whether the sale-deed dated 19.2.1920 is invalid as alleged in para 3 of the W.S.?
(2) Whether the defendants are licensess if so are they liable to ejectment ?
(3) Whether the defendants are Co-shares are alleged?
(4) To what relief, if any are the plaintiffs entitled ?
Addl. issues (5) Whether the suit has not been properly valued and the court fee paid is insufficient ?
(6) Whether the defendants have perfected their title over the house in suit by adverse possession as alleged in para 4 W.S. ?"
48. Plaintiff No. 1 Durga Prasad examined himself as PW-1 and produced witnesses PW-2 Mahraji and PW-3 Bhaiya Ram/plaintiff No.2, PW-4 Ram Gulam, PW-5 Mohd. Yaiya Khan.
49. The defendants produced witness DW-1 Nazir Mohammad, DW-2 Ganesh Prasad and defendant No.1 examined himself as DW-3.
50. The plaintiff/ respondent filed original sale deed dated 12.09.1919 (Paper No. 10-Ka, Ex.-1), original sale deed dated 19.02.1920 (Paper No. 11-Ka, Ex.-75), Ex.-76 post office receipt, Ex.-3 acknowledgement dated 22.08.1963, Ex.-27 to Ex.-67 house tax receipts issued by Municipality and Ex.-70, Ex.-77, Mortgage deed. The plaintiff has filed five documents through list-317-Ga, which were accepted by the court of learned A.D.J.-II, Sultanpur vide order dated 25.01.1984, two documents through list-331-Ga, which were accepted by the same court vide order dated 28.04.1984, five documents through list-334-Ga which were accepted by the court of Special Judge/A.D.J., Sultanpur vide order dated 29.10.1985, four documents through list 342-Ga, which were accepted by the same court vide order dated 05.11.1985, three documents through list-349-Ga, which were accepted by the same court vide order dated 15.11.1985, one document through list-379-Ga.
51. Learned trial court has rejected the documents, paper No. 103 to 125, paper No. 127 to 130 filed by the plaintiffs being irrelevant.
52. Appellants/ defendants filed report dated 10.10.1963 (A-1) regarding the fact that register house tax of year 1943 up to 1950 were weeded out, therefore, copy could not be issued, A-8, A-9, death certificate (A-11) of Harishchandra, S/o Dargahi, two documents through list-324-Ga which were accepted by the court of Additional District Judge-II, Sultanpur vide order dated 24.03.1984, two documents through list-313-Ga which were accepted by the same court vide order dated 20.12.1983.
53. Learned trial Court vide impugned judgment dated 28.02.1970 has dismissed suit of plaintiffs. After remand by this Court, first appellate court has decided Appeal No. 45 of 1970 and delivered impugned judgment dated 26.09.2007 decreeing the suit of the plaintiffs.
54. The appellants aggrieved by impugned judgment passed by first appellate Court have preferred present second appeal.
55. The learned Senior Counsel Shri Mohammad Arif Khan has put forth and reiterated his argument that the learned trial court has observed regarding Exhibit-25, which was not considered by the first appellate court. On the other hand plaintiff in his statement has made admission that appellants were not having any other house, except the disputed house. On the other hand, Shri I. D. Shukla, the learned counsel for respondents has pointed out that there is also admission of Dargahi that they were residing in another house in Pratapganj.
56. In the aforesaid circumstances, there is no option, but to decide the present second appeal on the basis of material available on record.
57. The arguments of both the parties thus has been concluded earlier on 26.02.2020 and concluded on 07.07.2020.
58. Learned counsel for the appellants has relied upon the following expositions of law:
A Full Bench of Hon'ble Apex Court in para-15 of its judgment given in the case of Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179 at page 188, has held as under:
15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.
A Full Bench of Apex Court in paras-5, 6, 7, 8 & 9 of its judgment given in Madhukar Vs. Sangram, (2001) 4 SCC 756 at page 758 has observed as under:
5. We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS No. 93 of 1971). Oral evidence had also been led by the parties before the trial court which was noticed and appreciated by the trial court. However, the impugned judgment in the first appeal is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though the trial court had dismissed the suit on the ground of limitation as also on the ground that the decision in the earlier suit (OS No. 93 of 1971) operated as res judicata against Defendant 1 only, the High Court has not even considered, much less discussed the correctness of either of the two grounds on which the trial court had dismissed the suit. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
6. In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : JT (2001) 2 SC 407] this Court opined: (SCC pp. 188-89, para 15) "The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
7. The salutary principles referred to above in Santosh Hazari case [(2001) 3 SCC 179 : JT (2001) 2 SC 407] have been respected in their breach.
8. Our careful perusal of the judgment in the first appeal shows that it hopelessly falls short of considerations which are expected from the court of first appeal. We, accordingly set aside the impugned judgment and decree of the High Court and remand the first appeal to the High Court for its fresh disposal in accordance with law.
9. We wish to clarify that nothing said hereinabove shall be construed as any expression of opinion on the merits of the case.
A Division Bench of Hon'ble Supreme Court in paras-27, 28, 36, 37 &, 38 in the case of Jagdish Singh Vs. Madhuri Devi, (2008) 10 SCC 497 at page 504 has held as under:
27. It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence--oral as well as documentary--and can come to its own conclusion.
28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable.
36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has "virtually" reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law.
38. Unfortunately, in the instant case, the said exercise has not been undertaken by the High Court. So-called conclusions reached by the High Court, therefore, cannot be endorsed and the decree passed in favour of the wife setting aside the decree of divorce in favour of the husband cannot be upheld. The order, therefore, deserves to be quashed and set aside and is hereby set aside.
A Full Bench of Hon'ble Supreme Court on 14.03.1969 in the case of Munshi Manzoor Ali Khan Vs. Sukhbasi Lal : AIR 1974 SC 706, 1969 (2) UJ 343 SC, in paras-10 & 11 of its judgment has observed as under:
10. The learned Counsel for the appellants was unable to point out any material to show that there was any evidence on the record establishing that the plaintiffs were in possession of the suit land within 12 years of the date of the suit. In our opinion the High Court was right in holding that the suit was barred under Article 142 of the Limitation Act.
11. The learned Counsel contended that the suit was within limitation because it was brought within 3 years of the order of the Magistrate, dated March 4, 1969, the period provided in Article 47. But a suit may be within limitation under one article and may yet be barred under another article of the Limitation Act in two cases decided by the Privy Council the suits failed under Article 144 although these were instituted within 3 years of the orders of the Magistrates under Section 145, Criminal P. C. See Jahandad Khan v. Abdul Ghafur Khan and Radhamoni Debi v. The Collector of Khulna (1900) ILR 27 Cal 943 (PC).
A learned Single Judge of Madhya Pradesh High Court in the case of Nathulal Vs. Ambaram, 1981 SCC OnLine MP 76 : 1982 MP LJ 59 : AIR 1982 MP 114 at page 60 has observed as under:
5. These concurrent findings of fact are not assailed to any extent before me nor they could be so assailed. It is in the background of these concurrent findings of fact that this Court has to determine whether the Courts below had rightly applied. Article 144 or whether, actually it was Article 142 alone which was attracted, as has been now argued by the learned counsel for the appellants. The lower appellate Court, after citing certain rulings, laying down the principles governing the applicability of Article 142 or 144, has ruled out the applicability of Article 142 to the fact and circumstances of the present case on the ground that there was no "discontinuance of possession", i.e., abandonment of title on the part of the plaintiffs, since the plaintiffs had all along been anxiously taking steps to get back the possession by referring the matter to revenue authorities by successive proceedings as detailed and discussed in para 8 of its judgment. It was, hence, held that "discontinuance of possession" being, thus, not deducible from the facts and circumstances, as pleaded and proved on the side of the plaintiffs, Article 142 was not applicable, and that, only Article 144 alone was applicable which, on being applied, entitled the plaintiffs to the decree for possession in the absence of the defendants' any plea regarding adverse possession beyond the statutory period.
6. The lower appellate Court's above findings and the reasonings there in do not appear to be sound when considered in the light of the plethora of case law dealing with the crucial matter, as to what actually constitutes "discontinuance of possession."
7. The distinction between "discontinuance of possession" and "dispossession" was pointed out in the leading case of Rains v. Buxton [(1880) 14 Ch. D. 537.] in these words:
"The difference between dispossession and discontinuance of possession might be expressed in this way--the one is where a person comes in and drives out the others From possession, the other case is where the person in possession goes out and is followed into possession by other persons."
This definition has been widely accepted in Maharban Lalli v. Usuf Khan Kallu [AIR 1939 Nag. 7.], where, the law has been succinctly laid down by Vivian Bose, J. thus:
"The term ''dispossession' applies when a person comes in and drives out others from the possession. It imports ouster, a driving put from possession against the will of the person in actual possession.................. The term ''discontinuance" however implies a voluntary act, an abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by any one choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession. But this cannot be assumed."
8. In Gangoobai v. Soni [1942 NLJ 99.] , it is held that "if a plaintiff sues for possession on the allegation that the defendant came into possession under a licence from the plaintiff and the defendant denies the same, the suit will be governed by Article 142 and not by Article 144 of the Limitation Act, as the plaintiff will be deemed to have discontinued possession within the meaning of the former Article. The plaintiff in such a case must prove that the defendant's permissive possession began within 12 years of the suit." (Emphasis supplied.)
9. In Official Receiver v. Govindaraju, the plaintiff had pleaded permissive possession and defendant had failed to establish it, as is also the case here. It was held by their Lordships after placing reliance on Alam Khan Sahib v. Karunpannaswami Nadan [(1938) 1 MLJ 113 : AIR 1938 Mad. 415.], that such a suit is governed by Article 142 and not by Article 144; and that in such a situation, the plaintiff was bound to prove his possession within 12 years of the suit. Similar view has been held in Krishna Pillai v. Kumara Pillai [AIR 1954 Trav. Co. 449.] and quoted with approval in the said High Court's subsequent decision Venkiteswara Iyer v. Cherivathu Mathen [AIR 1957 Trav. Co. 223.]. Their Lordships, invoking the applicability of Article 142, have observed in this connection that "the defendant in admitted possession of the property is not obliged to lead evidence to prove that his possession has been hostile for the statutory period. When the alleged origin of his possession as also its permissive or derivative nature are seen to be baseless, the plaintiff's claim for recovery of possession on the strength of such allegations must fail unless there is acceptable evidence on his side to the effect that he was in possession of the property within 12 years prior to the date of suit, so as to keep his title alive." The other cases which deserve attention in this regard are Taja Bibi v. Ghulam Mohd. [AIR 1961 J & K 82.] and Lingamma v. Putte Gowda [AIR 1963 Mys. 1 (FB).].
10. In the light of the decisions referred to above, it may be observed that in the present case also, the defendants are in possession of the land in question belonging to the plaintiffs for over 40 years continuously. Further, plaintiffs' allegations regarding licence and permissive possession are found to be not established. Hence, in these circumstances, plaintiffs would be deemed to have discontinued their possession within the meaning of Article 142. Article 144, would, in such circumstances, have no application at all. The plaintiffs admittedly being not in possession of the suit-land within 12 years before the suit, their suit for possession would, thus, fail; and the defendants, in such a case, would not be required either to plead or prove their adverse possession to any extent. In view of this matter, disagreeing with the lower appellate Court and so also with the trial Court, it has to be held in the light of the facts and circumstances of the case, that the suit, in the matter of limitation, would be governed by Article 142, and not by Article 144 of the Limitation Act, 1908.
11. In the result, thus, the defendants' appeal is allowed. Setting aside the Judgment and Decree of the lower appellate Court, it is ordered and decreed that the plaintiffs' suit for possession be and is now dismissed as being time-barred under Article 142 of the Limitation Act, 1908.
In the case of Uma Shankar and others Vs. Dy. Director of Consolidation, 1979 SCC OnLine All 1161 : 1979 RD 305 at page 306, a learned Single Judge of this Court in paras-5, 6 & 7 of its judgment has observed as follows:
5. The learned counsel or the respondents contended that the respondents have claimed right in the specific plots and not in the share in any holding. Therefore, the limitation applicable in this case will not be 12 years but it will be two years under Section 180 of the U.P. Tenancy Act as the possession of the respondent commenced much before the enforcement of that Act. The learned counsel also contended that on the basis of the evidence on the record, all the consolidation authorities have accepted possession of the respondents for over 25 years and this is a question of fact, which cannot be challenged in the writ-jurisdiction. He further contended that even assuming the fact that the respondents claimed any possession with the consent of Gaya Prasad, but no step was taken for ejectment prior to the enforcement of Zamindari Abolition and Land Reforms Act. The respondents matured their tittle on the basis of long possession, much before August 1, 1963, when the suit for declaration and possession in the alternative was filed against the respondents by the petitioners.
6. I have considered the argument of the learned counsel for both the parties and the material placed before me. On careful, examination of the case set up by the parties before the Consolidation Officer, it appears that respondents had set up a case that they had been in adverse possession for the last 31 years, whereas the petitioners have totally denied the possession of the respondents in any capacity. It was not the case of the petitioners that the respondents had been in permissive possession and thereby, had not acquired any title. A copy of the grounds of revision filed with this petition as Annexure 9 also does not disclose that they ever alleged about the possession of the respondents, as permissive. On the other hand, in para 3 of the grounds of revision, it has been clearly alleged that the respondents were never in possession, and have no right or title therein. As far as the question of possession of the respondents over the plots claimed by them is concerned, a clear finding of fact has been recorded by the Deputy Director of Consolidation that Komal, the respondent No. 4 is in possession from before 1952. The learned counsel for the petitioners has failed to assail this finding of fact. The result is that the possession of the respondent from before 1952 stands proved.
7. The next question for consideration is about the nature of possession. According to the case set up by both the parties before the Consolidation authorities, there is no case of permissive possession and it was not even open for any consolidation authority to make out a new case of permissive possession. The Deputy Director of Consolidation from the evidence on record, has rightly recorded possession of respondents from before 1952. The learned counsel for respondents urged that on the basis of this finding of possession, in absence of any case of permissive possession, the possession of the respondents will bo presumed to be adverse possession. In support of this contention, he placed reliance on the decision of this court reported in Nanhey Khan v. Mst. Gomiti([(1949) Alld. 289.]) wherein it has been held that "in a suit for possession of land where the defendants had been in possession for over 50 years by keeping his owntal, the presumption of law that the possession is to be presumed to be adverse unless proved, otherwise becomes applicable. Such a presumption cannot be reverted by equivocal facts." In Khanjan Singh v. Abhey Ram( [1966 A.W.R. 254.] ) relying in Municipal Board, Etawah v. Mt. Ram Sree ( [A.I.R. 1931 Alld. 679.] ) it was held that "where a right is based on title, extended over 30 years, plea of adverse possession need not be specifically pleaded as it is included in the plea of title." In this case also, the plaintiff's possession for over 30 years has been accepted.
A Division Bench of Hon'ble Supreme Court in the case of Shasidhar Vs. Ashwini Uma Mathad, (2015) 11 SCC 269 : 2015 SCC OnLine SC 26 in its paras-11 to 18 and in the case of Vinod Kumar Vs. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521 : 2014 SCC OnLine SC 826 at page 393, in paras-10 to 17 has observed as under:
As far back in 1969, the learned Judge -- V.R. Krishna Iyer, J. (as His Lordship then was the Judge of the Kerala High Court) while deciding the first appeal under Section 96 CPC in Kurian Chacko v. Varkey Ouseph [Kurian Chacko v. Varkey Ouseph, 1968 SCC OnLine Ker 101 : AIR 1969 Ker 316] , reminded the first appellate court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned Judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.
3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation." (emphasis supplied) This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate court under Section 96 of the Code. We consider it apposite to refer to some of the decisions.
In Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179], this Court held as under: (SCC pp. 188-89, para 15) "15. ... the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756], wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
In H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] , this Court stated as under: (SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
Again in Jagannath v. Arulappa [Jagannath v. Arulappa, (2005) 12 SCC 303] , while considering the scope of Section 96 of the Code this Court observed as follows: (SCC p. 303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion."
Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v.Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , SCC p. 188, para 15 and Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756] , SCC p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
The aforementioned cases were relied upon by this Court while reiterating the same principle in SBI v. Emmsons International Ltd. [SBI v. Emmsons International Ltd., (2011) 12 SCC 174 : (2012) 2 SCC (Civ) 289] This Court has recently taken the same view on similar facts arising in Vinod Kumar v. Gangadhar [Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521 : (2014) 12 Scale 171].
Division Bench of Hon'ble Supreme Court in the case of Vinod Kumar Vs. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521 : 2014 SCC OnLine SC 826 at page 393 has further in para-18 to 20 has observed as follows:
18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial court can be sustained or not and if so, how, and if not, why.
19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we are unable to uphold the impugned judgment [Vinod Kumar v. Gangadhar, First Appeal No. 173 of 1999, decided on 21-3-2013 (MP)] of the High Court.
20. The appeal thus succeeds and is accordingly allowed. The impugned judgment [Vinod Kumar v. Gangadhar, First Appeal No. 173 of 1999, decided on 21-3-2013 (MP)] is set aside. The case is remanded to the High Court for deciding the first appeal afresh, keeping in view the principle of law laid down by this Court quoted supra.
59. In support of his arguments, learned counsel for the respondents has relied upon the following expositions of law:
A Division Bench of Honble Supreme Court in the case of Laliteshwar Prasad Singh Vs. S.P. Srivastava, (2017) 2 SCC 415 : (2017) 1 SCC (Civ) 680 : 2016 SCC OnLine SC 1476 at page 421 in para-12 has observed as under:
12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order 41 Rule 31 CPC reads as under:
"31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein."
It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties.
A Division Bench of Hon'ble Apex Court in the case of G. Amalorpavam Vs. R.C. Diocese of Madurai, (2006) 3 SCC 224 at page 226 in para-9 of its judgment has observed as under:
9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.
A Division Bench of Hon'ble Supreme Court in the case of Arumugham Vs. Sundarambal, (1999) 4 SCC 350 at page 356 in para-14 of its judgment has observed as under:
14. From the aforesaid judgment of the three-Judge Bench in Ramachandra Ayyar case [AIR 1963 SC 302] it is clear that this Court held that the second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the appellate trial court. The aforesaid judgment of this Court in Ramachandra Ayyar case [AIR 1963 SC 302] specifically distinguished Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy Bahadur [10 CWN 630 : 16 MLJ 272 (PC)] rendered by the Privy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate court was dealing with the correctness of the judgment of the first appellate court which reversed the trial court.
Another Bench of Hon'ble Supreme Court in the case of Radha Raman Samanta Vs. Bank of India, (2004) 1 SCC 605 : 2004 SCC (L&S) 248 at page 609 in para-12 of its judgment has observed as follows:
12. On the earlier occasion when the matter was considered by the Division Bench, the respondent Bank did not raise any issue of alternative remedy or any question relating to non-maintainability of the writ petition. We may also notice that when such issues might and ought to have been raised but had not been done so, it must be taken that the Division Bench had rejected such contentions and the order of the Division Bench remanding the matter to the learned Single Judge was not carried in appeal and became final. Therefore, the learned Single Judge was bound to address only on one issue upon which the matter had been remanded. Thus, the Division Bench could not have overlooked these facts in the appeal arising from the order of the learned Single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all or not. Therefore, we are of the view that the High Court could not have overlooked these facts and interfered with the order of the learned Single Judge.
A Division Bench of Hon'ble Supreme Court in the case of SBI Vs. S. N. Goyal, (2008) 8 SCC 92 : (2008) 2 SCC (L&S) 678 at page 102 has discussed in para-13 as under:
What is a substantial question of law?
13. Second appeals would lie in cases which involve substantial questions of law. The word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. "Substantial questions of law" means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case. Be that as it may.
A Division Benh of Hon'ble Supreme Court in the case of Gurnam Singh Vs. Lehna Singh, (2019) 7 SCC 641 : (2019) 3 SCC (Civ) 709 : 2019 SCC OnLine SC 374 in its para-14 has observed as under:
14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain [Ishwar Dass Jain v.Sohan Lal, (2000) 1 SCC 434]. In the aforesaid decision, this Court has specifically observed and held: (SCC p. 437) "Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."
A Division Bench of Hon'ble Supreme Court in the case of Naresh and Others Vs. Hemant and others, 2019 SCC OnLine SC 1490 in para-13 of its judgment has observed as under:
13. In Madamanchi Ramappa v. Muthaluru Bojappa, (1964) 2 SCR 673, this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows:
"12. ....The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
A Division Bench of Hon'ble Supreme Court in the case of Damodar Lal Vs. Sohan Devi, (2016) 3 SCC 78 : (2016) 2 SCC (Civ) 36 : 2016 SCC OnLine SC 5 in para-14 of its judgment has observed as follows:
14. In S.R. Tewari v. Union of India [S.R. Tewari v. Union of India, (2013) 6 SCC 602 : (2013) 2 SCC (L&S) 893] , after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , it was held at para 30: (S.R. Tewari case [S.R. Tewari v. Union of India, (2013) 6 SCC 602 : (2013) 2 SCC (L&S) 893] , SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is ''against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (VideRajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], Gamini Bala Koteswara Rao v. State of A.P.[Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] and Babu v. State of Kerala [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179].)"
This Court has also dealt with other aspects of perversity.
A Division Bench of Hon'ble Supreme Court in the case of Uttam Chand (D) Through Lrs. Vs. Nathu Ram (D) Through Lrs. and Others, 2020 SCC Online SC 37 in paras-6, 9 and 15 of its judgment has observed as follows:
6. In the first appeal by the plaintiff, the learned First Appellate Court affirmed the findings recorded by the trial court on Issue Nos. 1 and 3 that the plaintiff is the owner of the property in question. However, in respect of Issue No. 2 as to whether the suit is time barred, the learned First Appellate Court returned a finding that the suit is within time as the same was filed on February 17, 1979 i.e. before the completion of 12 years. Issue No. 2 was decided against the defendants holding that the findings recorded by the trial court that the limitation starts from the date of purchase of the suit property is not sustainable. The right of the respondents over the property was challenged before the completion of 12 years, therefore, the suit filed in February, 1979 is within period of limitation. Under issue No. 4, the findings recorded were that the mere possession of land, however long it may be, would not ripe into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. The assertion of title must be clear and unequivocal. Consequently, Issue No. 5 was also decided against the defendants and the suit stood decreed.
9. Learned counsel for the appellant argued that for a successful plea of adverse possession against the true owner, the person in possession has to admit hostile possession to the knowledge of the true owner. The defendants in their written statement have not admitted the title of the appellant and of adverse possession to the knowledge of the true owner. The defendants have denied vesting of the land with the Managing Officer and the subsequent sale in favour of the appellant. The trial court has returned a finding as to the title of the appellant itself and such finding has not been set aside neither by the First Appellate Court nor by the High Court. The defendants are asserting their long and continuous possession but such possession howsoever long cannot be termed as adverse possession so as to perfect title within the meaning of Article 65 of the Limitation Act. It was argued that long possession is not necessarily adverse possession. Reliance is placed upon Karnataka Board of Wakf v. Government of India (2004) 10 SCC 779 ,Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma alias Nacharamma (2008) 15 SCC 150 and Dagadabai (Dead) by Legal Representatives v. Abbas alias Gulab Rustum Pinjari.(2017) 13 SCC 705
15.The matter has been examined by a Constitution Bench in M Siddiq (D) through LRs v. Mahant Suresh Das wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under:
"747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr. Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being ''nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
xxxxxx
752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is "polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held:
"13. "It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.)."
These observations were made in the context of possession in Section 29(b) of the Arms Act 1959.
In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the "classical requirement" of adverse possession:
"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82]). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor."
The court cited the following extract from U N Mitra's "Tagore Law Lectures on the Law of Limitation and Prescription":
"7...An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession." (6th Edition, Vol. I, Lecture VI, at page 159) This Court held:
"7...Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus."
In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779, Justice S Rajendra Babu, speaking for a two judge Bench held that:
"11...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed."
The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law.
In Annakili v. A Vedanayagam, (2007) 14 SCC 308, this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act."
A learned Single Judge of this Court in the case of Dalla Vs. Nanhu, 2018 SCC OnLine All 5845 in paras- has observed as follows:
31. In the case of Jagdish Singh v. Amresh, reported 2018 (36) LCD Page 2729, in Para-13, this Court held as under:--
"So far as the contention of learned counsel for the appellant that there is no statutory compliance of Order XLI Rule 31 CPC is concerned, suffice is to observe that the Apex Court in a recent judgment dated 4.8.2017 passed in Civil Appeal No. 9951 of 2017; U. Manjunath Rao v. U. Chandrashekhar, has held that the compliance of Order XLI Rule 31 CPC will depend in the facts and circumstances of the case and in case there is substantial compliance of Order XLI Rule 31 no illegality can be attributed. In the present case there is substantial compliance of Order XLI Rule 31 CPC as such the contention raised has no force."
A Division Bench of this Court in the case of Smt. Manju Lata Agarwal Vs. State Of U.P. and others, (2008) 1 UPLBEC 211 at page 211 in paras-46 & 49 has observed as under:
46. In Sawarn Singh v. State of Punjab,AIR 1976 SC 232,while dealing with such a issue, the Court held as under:
"In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merit either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the court is satisfied that the authority would have passed the order on the basis of the relevant and existing ground, and the exclusion of irrelevant or non-existing ground could not have affected the ultimate decision". (Emphasis added).
49. A similar view has been reiterated by the Hon'ble Apex Court in Dwarka Das Bhatia v. The State of Jammu,1957 AIR 164, and Kashmir; State of Orissa and Ors v. Bidyabhushan Mohapatra,AIR 1963 SC 779; The State of Maharashtra v. Babulal Kriparam Takkamore, AIR 1967 SC 1353 and Ors.; Binny Ltd. v. Their Workmen and Anr. and P. D. Agrawal v. State Bank of India and Ors, AIR 2006 SC 2064.
Another Division Bench of this Court in the case of Dagadabai Vs. Abbas, (2017) 13 SCC 705 : (2017) 5 SCC (Civ) 718 : 2017 SCC OnLine SC 431 at page 708 Equivalent citation 2017 (35) LCD 1112 in paras-16, 17, 18 & 19 has observed as under:
16. Fourth, the High Court erred fundamentally in observing in para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea". In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.
17. It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.
18. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.
19. In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.
Another learned Single Judge of this Court in the case of Girish Chandra Singh Vs. Sheo Nath, 2013 SCC OnLine All 14241 : (2013) 120 RD 337 at page 342, Equivalent citation 2013 (31) LCD 1193 in paras-20, 21, 23, 26, 28, 29, 32, 33, 34, 35, 37, 38 & 39 of its judgment has observed as follows:
20. Pleadings are necessary. Recently, the Apex Court has considered in detail the various authorities on the question of adverse possession in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, [(2009) 16 SCC 517 : AIR 2009 SC 103 : 2009 (106) RD 784 (9C).] and in para 18 observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
21. The Court also referred to its arlier decision in D.N. Venkatarayappa v. State of Karnataka, [(1997) 7 SCC 567.] observing:
"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, tite and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
23. In Mahesh Chand Sharma v. Raj Kumari Sliarma, [(1996) 8 SCC 128 : AIR 1996 SC 869.] the necessity of plead ing was emphasized and the Court in para 36 said:
"In this connection, we may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. For all the above reasons, the plea of limitation put forward by the appellant, or by Defendants Nos. 2 to 5 as the case may, be is rejected."
26. The pleading must be specific to the date when possession become ad verse. In Ram Charan Das v. Naurangi Lal, [AIR 1933 PC 75.] the property of a Mutt was alienated by Mahant by executing a Mukararri (permanent lease) in favour of one Munshi Naurangi Lal. The sale deed of the land in dispute was also executed to another one and both the documents contain a stipulation that they were executed to meet expenses and necessities of Mutt. After the death of Mahant, a suit was filed by successor in office against the lessee and purchaser etc. claiming possession of property in dispute to Mutt. The defendants besides others, took the plea of adverse possession also. The question was, did possession of the concerned defendant became adverse to Mutt or Mahant representing the Mutt on the date of relevant assurance or date of death of the concerned Mahant. The Trial Court held latter date to be correct while the High Court took a contrary view and upheld the former date. The Privy Council held:
"In other words' a mahant has power (apart from any question of necessity) to create an interest in property appertaining to the Mutt which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the mutt, with the result that adverse possession of the particular property will only commence when the mahant who had disposed of it ceases to be mahant by death or otherwise. If this be right as it must be taken to be, where the disposition by the mahant purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property nor was any logical reason suggested in argument why there should be any difference between the two cases. In each case the operation of the purported grant is effective and endures only for the period during which the mahant had power to create an interest in the property of the mutt."
(Emphasis added)
28. In T. Anjanappa v. Soma-lingappa, [2006 (101) RD 705 (SC)2006 (65) ALR 151.] the pre-conditions for taking plea of adverse possession has been summarised as under:
"It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
29. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of the respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Mohammad Ali v. Jagadish Kalita, [(2004) 1 SCC 271.] with reference to a case dealing with such an issue amongst co-sharers it was observed that "Long. and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription."
32. Where a plea of adverse possession is taken, the pleadings' are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession. Since mere long possession cannot satisfy the requirement of adverse possession, the person claiming it, must prove as to how and when the adverse possession commenced and whether fact of adverse possession was known to real owner. (R.N. Dawar v. Ganga Saran Dhama) [AIR 1993 Del. 19.] In Parwatabai v. Sotia Bai, [(1996) 10 SCC 266.] it was stressed upon by the Apex Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with suffi-ciept clarity when his possession became adverse and the nature of such possession. [See Mahesh Chand Shartna (supra)].
33. In Parsinnin v. Sukhi, [(1993) 4 SCC 375.] it said that burden of proof lies on the party who claims adverse possession. He has to plead and prove that his possession is nec vi, nec clam, nec precario i.e., peaceful, open and continuous.
34. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla v. Sabitri Bera. [JT 2009 (10) SC 538.]
35. In Gautam Sarup v. Leela Jetly, [(2008) 7 SCC 85.] the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other.
37. The Privy Council while considering the above question observed that the Province of Oudh was annexed by the East India Company in 1856 but in 1857 during the First War of Independence by native Indians much of its part was declared independent. Soon after it was conquered by the British Government and it got reoccupation of the entire province of Oudh. Thereafter in March 1858 the British Government issued a proclamation confiscating, with certain exceptions "the proprietary right in the soil of the Province" and reserved to itself the power to dispose of that right in such manner as to it may seem fit. On 10th October 1859 the British Government (the then Government of India) declared that every talukdar with whom a summary settlement has been made since the re-occupation of the Province has thereby acquired a permanent, hereditary and transferable proprietary right, namely in the taluka for which he has engaged, including the perpetual privilege of engaging with the Government for the revenue of the taluka. Pursuant to that declaration, Wazir Ali with whom a summary settlement of Taluka has already been made was granted a Sanad which conferred upon him full proprietary right, title and possession of the estate or Ambhapur. In the said grant, there contained a stipulation that in the event of dying intestate or anyone of his successor dies intestate, the estate shall descend to the nearest male heir according to rule of primogeniture. Subsequently, in order to avoid any further doubt in the matter, Oudh Estates Act (I of 1869) was enacted wherein Wazir Ali was shown as a Talukdar whose estate according to the custom of the family on or before 13.2.1856 ordinarily devolved upon a single heir. However, having noticed this state of affairs, the Privy Council further observed that this rule was not followed after the death of Wazir Ali and the Taluka was mutated in favour of his cousin Nawazish Ali. He was recorded as owner of Taluka. Thereafter in 1892 Samsam Ali entered the joint possession with Nawazish Ali and after death of Nawazish Ali, Samsam Ali was recorded as the sole owner. The system of devolution of the property was explained being in accordance with the usage of the family and when the name of Asghar Ali was recorded, he also made a similar declaration. Faced with the situation the appellant sought to explain the possession of Nawazish Ali as adverse possession but the same was discarded by the Privy Council observing:
"The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."
38. In SM. Karim v. Mst. BM Sakitia, [AIR 1964 SC 1254.] the Hon'ble Apex Court has held that the alternative claim must be clearly made and proved, adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point on limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "a possible title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and prayer clause is not a substitute for a plea. Relevant paras 3 to 5 of the said judgment read as follows:
"3. In this appeal, it has been stressed by the appellant that the findings clearly establish the benami nature of the transaction of 1914. This is, perhaps, true but the appellant cannot avail himself of it. The appellant's claim based upon the benami nature of the transaction cannot stand because section 66 of the Code of Civil Procedure bars it. That section provides that no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. Formerly, the opening words were, no suit shall be maintained against a certified purchaser and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court. The protection is thus available not only against the real purchaser but also against anyone claiming through him. In the present case, the appellant as plaintiff was hit by the section and the defendants were protected by it."
"4. It is contended that the case falls within the second sub-section under which a suit is possible at the instance of a third person who wishes to proceed against the property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner. Reliance is placed upon the transfer by Syed Aulad Ali in favour of the appellant which is described as a claim by the transferee against the real owner. The words of the second sub-section refer to the claim of creditors and not to the claims of transferees. The latter are dealt with in first sub-section, and if the meaning sought to be placed on the second sub-section by the appellant were to be accepted, the entire policy of the law would be defeated by the real purchaser making a transfer to another and the first sub-section would become almost a dead letter. In our opinion, such a construction cannot be accepted and the plaintiff's suit must be held to be barred under section 66 of the Code."
"5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two Courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukan v. Krishanand [ILR 32 Pat 353.] and Sri Bhagwan Singh v. Ram Basi Kuer, [AIR 1957 Pat 157.] to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, [AIR 1940 P.C. 202.] the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea."
39. In B. Leelavathi v. Honnamtna, [(2005) 11 SCC 115.] the Hon'ble Supreme Court has held that the adverse possession is a question of fact which has to be specifi cally pleaded and proved and in the absence of any plea of adverse posses sion, framing of an issue and adducing evidence it would not be held that the plaintiffs had perfected towards the title by way of adverse possession. Para 11 of the judgment read as follows:
"11. Plea of adverse possession had been taken vaguely in the plaint. No categorical stand on this point was taken in the plaint. No issue had been framed and seemingly the same was not insisted upon by the plaintiff-respondent. Adverse possession is a question of fact which has to be specifically pleaded and proved. No evidence was adduced by the plaintiff-respondent with regard to adverse possession. Honnamma, the plaintiff in her own statement did not say that she is in adverse possession of the suit property. We fail to understand as to how the High Court, in the absence of any plea of adverse possession, framing of an issue and evidence led on the point, could hold that the plaintiff-respondent had perfected her title by way of adverse possession."
60. A learned Judge of this Court in the case of Rama Kant Vs. Board of Revenue, 2005 SCC OnLine All 49 : (2005) 1 AWC 929 : (2005) 98 RD 389 at page 931, Equivalent citation 2005 (26) LCD 1057 in paras-6 & 7 of its judgment has observed as under:
6. It is not open to an inferior Court or Tribunal to refuse to carry out the directions or to act contrary to directions issued by a superior Court or Tribunal. Such refusal to carry out the directions or to act in defiance of the directions issued by the superior Court or Tribunal is in effect denial of justice and is destructive of the basic principle of the administration of justice based on hierarchy of Courts in our country. If a subordinate Court or Tribunal refuses to carry out the directions given to it by a superior Court or Tribunal in exercise of its appellate power, the result would be chaos in the administration of justice.
7. The order of remand dated 22.11.1979, became final between the parties an same was not challenged. Thus, it was not open to the trial court being an inferior court to reframe fresh issues and to record fresh findings. The only course open to the trial court was to give finding on the two issues reframed by the first appellate court and decide the suit accordingly as directed in the order of remand. The trial court exceeded its jurisdiction by travelling beyond directions contained in the remand order and this vital aspect have been illegally ignored by the court of first appeal as well as second appeal.
Principles for entertaining Second Appeal
61. On the point of admission of Second appeal, the following expositions of law is relevant:-
62. In the case of Thulasidhara v. Narayanappa, (2019) 6 SCC 409 the Hon'ble Supreme Court has held as under:
"7.1. At the outset, it is required to be noted that by the impugned judgment and order [Narayanappa v. Rangamma, 2007 SCC OnLine Kar 737] , in a second appeal and in exercise of the powers under Section 100 CPC, the High Court has set aside the findings of facts recorded by both the courts below. The learned trial court dismissed the suit and the same came to be confirmed by the learned first appellate court. While allowing the second appeal, the High Court framed only one substantial question of law which reads as under:
"Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973, that is, subsequent to the date 23-4-1971 when Ext. D-1, partition deed, Palupatti is alleged to have come into existence?"
No other substantial question of law was framed. We are afraid that the aforesaid can be said to be a substantial question of law at all. It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC.
7.2. As observed and held by this Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Apex Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain v. Sohan Lal [Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434] . In the aforesaid decision, this Court has specifically observed and held: (SCC pp. 441-42, paras 10-13) "10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. ...
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. ...
13. In either of the above situations, a substantial question of law can arise."
63. In the case of Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 the Hon'ble Supreme Court has held as under:
"13.1. The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Supreme Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal."
64. Hon'ble Supreme Court in State of M.P. Vs. Dungaji, (2019) 7 SCC 465 has propounded regarding interference by High Courts in exercising of power under Section 100 C.P.C. as follows:
"10. Now, so far as the impugned judgment and order [Dungaji v. State of M.P., Second Appeal No. 580 of 2003, order dated 29-10-2010 (MP)] passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the 1960 Act and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji, original plaintiff. There were concurrent findings of facts recorded by both the courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the courts below specifically disbelieved the divorce deed at Ext. P-5. The aforesaid findings were recorded by both the courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the courts below. Cogent reasons were given by both the courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned judgment and order in the second appeal under Section 100 CPC.
11. Even on merits also both the courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of divorce deed at Ext. P-5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a sale deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the competent authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the revenue records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the trial court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.
12. At this stage, it is required to be noted that before the competent authority, Kaveribai submitted the objections. Before the competent authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the competent authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the custom much prior to coming into force the 1960 Act. Therefore, as rightly observed by the learned trial court and the first appellate court only with a view to get out of the provisions of the Ceiling Act, 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned trial court that the divorce deed at Ext. P-5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act, 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the courts below which were on appreciation of evidence on record."
65. Hon'ble the Apex Court in the case of Narayana Gramani v. Mariammal, reported in (2018) 18 SCC 645 has held as under:-
17. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law". Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub-section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal. (See Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] and Surat Singh v. Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94])
66. In the case of Arulmighu Nellukadai Mariamman Tirukkoil Vs. Tamilarasi, reported in (2019) 6 SCC 686, Hon'ble Apex Court has held as under:-
10. The need to remand the case has occasioned because we find that the High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100(4) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") and further failed to decide the appeal as provided under Section 100(5) CPC.
11. It is noticed that the High Court framed two substantial questions of law (see para 7 of the impugned judgment [Tamilarasi v. Arulmighu Nellukadai Mariamman Tirukkoil, 2011 SCC OnLine Mad 1684]) for the first time in the impugned judgment [Tamilarasi v.Arulmighu Nellukadai Mariamman Tirukkoil, 2011 SCC OnLine Mad 1684] itself. In other words, what was required to be done by the High Court at the time of admission of the appeal was to formulate a question of law after hearing the appellant as provided under Section 100(4) CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by the proviso to Section 100(5) CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment.
12. In our considered opinion, the procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 CPC.
13. Recently, this Court had an occasion to examine this very question in Surat Singh v.Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94] . The law is explained in paras 19 to 35 of this decision which read as under: (SCC pp. 567-69) "19. ... Section 100 of the Code reads as under:
''100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.'
20. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law". Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court.
21. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub-section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.
22. Adverting to the facts of this case at hand, we are at a loss to understand as to how the High Court while passing a final judgment [Bhagwan v. Murti Devi, 2006 SCC OnLine P&H 2175] in its concluding paragraph could frame the substantial question of law for the first time and simultaneously answered the said question in appellant's favour. Obviously, the learned Judge must have done it by taking recourse to sub-section (4) of Section 100 of the Code.
23. Here is the case where the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding paragraph.
24. Such novel procedure adopted by the High Court, in our considered opinion, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable.
25. In our considered opinion, the High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in the appeal except to the extent permitted under sub-section (5). The procedure adopted by the High Court, apart from it being against the scheme of Section 100 of the Code, also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for final hearing.
26. In other words, since the High Court failed to frame any substantial question of law under sub-section (4) of Section 100 at the time of admission of the appeal, the respondents could not come to know on which question of law, the appeal was admitted for hearing.
27. It cannot be disputed that sub-section (5) gives the respondents a right to know on which substantial question of law, the appeal was admitted for final hearing. Sub-section (5) enables the respondents to raise an objection at the time of final hearing that the question of law framed at the instance of the appellant does not really arise in the case.
28. Yet, the other reason is that the respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing. In this situation, the High Court will have no jurisdiction to decide such second appeal finally for want of any substantial question(s) of law.
29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).
30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.
31. It is, however, of no significance, whether the respondent has appeared at the time of final hearing of the appeal or not. The High Court, in any case, has to proceed in accordance with the procedure prescribed under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.
32. It is a settled principle of rule of interpretation that whenever a statute requires a particular act to be done in a particular manner then such act has to be done in that manner only and in no other manner. (See Interpretation of Statutes by G.P. Singh, 9th Edn., p. 347 and Baru Ram v. Prasanni [Baru Ram v. Prasanni, AIR 1959 SC 93].)
33. The aforesaid principle applies to the case at hand because, as discussed above, the High Court failed to follow the procedure prescribed under Section 100 of the Code while allowing the second appeal and thus committed a jurisdictional error calling for interference by this Court in the impugned judgment.
34. While construing Section 100, this Court in Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] succinctly explained the scope, the jurisdiction and what constitutes a substantial questions of law under Section 100 of the Code.
35. It is, therefore, the duty of the High Court to always keep in mind the law laid down in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] while formulating the question and deciding the second appeal."
(emphasis in original)
14. In the light of the foregoing discussion, we cannot sustain the impugned judgment [Tamilarasi v. Arulmighu Nellukadai Mariamman Tirukkoil, 2011 SCC OnLine Mad 1684] which, in our view, is not in conformity with the mandatory requirements of Section 100 CPC and hence calls for interference in this appeal.
15. The appeal thus deserves to be allowed and it is accordingly allowed. The impugned judgment is set aside. The case is remanded to the High Court for deciding the second appeal afresh in accordance with law. The High Court will frame proper substantial question(s) of law after hearing the appellant and if it finds that any substantial question(s) of law arises in the case, it will first formulate such question(s) and then accordingly decide the appeal finally on the question(s) framed in accordance with law.
67. The Division Bench of Hon'ble Apex Court in the case of Chand Kaur Vs. Mehar Kaur, (2019) reported in 12 SCC 202 : 2019 SCC OnLine SC 426 at page 203 has held in paragraph no. 3 to 5 has held as under:-
3. The need to remand these cases to the High Court is called for because we find that the High Court though disposed of bunch of second appeals (RSAs Nos. 2066 to 2068 of 1987 and RSAs Nos. 2292 to 2294 of 1987) but it did so without framing any substantial question(s) of law as is required to be framed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").
4. In our opinion, framing of substantial question(s) of law in the present appeals was mandatory because the High Court allowed the second appeals and interfered in the judgment of the first appellate court, which was impugned in the second appeals. It is clear from the last paragraph of the impugned order [Mehar Kaur v. Chand Kaur, 2011 SCC OnLine P&H 17686] quoted hereinbelow: (Mehar Kaur case [Mehar Kaur v. Chand Kaur, 2011 SCC OnLine P&H 17686] , SCC OnLine P&H paras 15-16) "15. However, I am unable to convince myself with the latter part of the judgment of the learned lower appellate court wherein Chand Kaur was held to be entitled to ½ share of the property of Jaimal, by placing reliance on the judgment delivered in the previous litigation between Mehar Singh and Chand Kaur. Once the learned lower appellate court arrived at a specific finding of fact that Chand Kaur was neither the daughter of Santo nor Santo is daughter of Cheta, thus, there was no basis for it to hold that Chand Kaur was entitled to hold half of the property of late Jaimal. By placing reliance on the previous judgment, the learned lower appellate court went against its own judgment and impliedly admitted that Santo was the daughter of Cheta. It is obvious that such a status of things cannot co-exist. By necessary implication, as a result of the finding arrived at by the learned lower appellate court regarding Santo not being the daughter of Cheta, the entitlement of the property of late Jaimal falls on Mehar Singh and Mehar Kaur in equal shares.
16. In view of above, RSAs Nos. 2066-68 of 1987 filed by Mehar Kaur succeed and RSAs Nos. 2292-94 of 1987 filed by Chand Kaur are dismissed. The findings of the learned lower appellate court are modified to the extent that Mehar Singh and legal heirs of Mehar Kaur are held entitled to succeed to the entire property of late Jaimal Singh in equal shares and the legal heirs of Chand Kaur shall have no right to such property at all."
5. This Court has consistently held that the High Court has no jurisdiction to allow the second appeal without framing a substantial question of law as provided under Section 100 of the Code. In other words, the sine qua non for allowing the second appeal is to first frame the substantial question(s) of law arising in the case and then decide the second appeal by answering the question(s) framed. (See Surat Singh v. Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94] and Vijay Arjun Bhagat v. Nana Laxman Tapkire [Vijay Arjun Bhagat v. Nana Laxman Tapkire, (2018) 6 SCC 727 : (2018) 3 SCC (Civ) 801] .)
68. The Division Bench of Hon'ble Apex Court in the case of State of Rajasthan Vs. Shiv Dayal, reported in (2019) 8 SCC 637 : (2019) 4 SCC (Civ) 203 : 2019 SCC OnLine SC 1034 at page 639 has held in paragraph nos. 7, 8 and 11 to 17 and 25 as under:-
7. By impugned order [State v. Shiv Dayal, Civil Second Appeal No. 83 of 1999, order dated 23-3-1999 (Raj)] , the High Court dismissed the second appeals holding that the appeals did not involve any substantial question of law. It is against this order, the State felt aggrieved and has filed the present appeals by way of special leave before this Court.
8. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the State's second appeals on the ground that these appeals did not involve any substantial question of law.
11. In our opinion, the need to remand the case to the High Court has arisen because we find that the second appeals did involve several substantial questions of law for being answered on merits in accordance with law. The High Court was, therefore, not right in so holding.
12. Indeed, we find that the High Court dismissed the second appeals essentially on the ground that since the two courts have decreed the suit, no substantial question of law arises in the appeals. In other words, the High Court was mostly swayed away with the consideration that since two courts have decreed the suit, resulting in passing of the decree against the State, there arises no substantial question of law in the appeals. It is clear from the last paragraph of the impugned order, which reads as under:
"Under these circumstances, when both the learned courts have arrived at the conclusion that the disputed area is outside the forest area. Therefore, the principles laid down in T.N. Godavarman Thirumulpad v. Union of India (abovequoted) cannot be enforced in this appeal."
(emphasis supplied)
13. We do not agree with the aforementioned reasoning and the conclusion arrived at by the High Court. It is not the principle of law that where the High Court finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal.
14. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). However, this rule of law is subject to certain well-known exceptions mentioned infra.
15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.
16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court inRajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)
17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.
25. In our view, the High Court, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the aforementioned questions.
69. Learned counsel for respondents has argued that defendant's father, Bhagwan Das sold his half share in the disputed house by means of sale deed dated 19.02.1920. Sitaram, ancestor of plaintiffs and his wife brought up Dargahi-defendant No. 1. He resided with Sitaram and Smt. Mera in the house of Pratapganj and also assisted in business of fair price shop of Smt. Mera in the shop situated in the disputed property. The plaintiffs have proved that the disputed portion of the house was given to defendant No. 1-Dargahi on license by plaintiffs. They terminated license vide notice dated 24.04.1963 and notice was served on defendant No. 1 on 25.04.1963. The defendants are not co-sharer of the disputed house and their title has not been perfected on the basis of alleged adverse possession, rather it was permissive possession. The impugned judgment delivered by first appellate court is in consonance of observations made by this Court vide judgment dated 01.08.1980 and 16.12.2004 while remanded the matter to the first appellate court twice. The special leave petition instituted by defendants against the order dated 16.12.2004 of this Court has been dismissed, therefore, the observations of this Court have become final. The appellants are liable to be evicted from the disputed portion of the house No. 620/ 618 situated in locality Parkinsganj, Sultanpur City. The impugned judgment dated 26.09.2007 decreeing the suit of plaintiffs delivered by first appellate court cannot be termed as perverse or against the evidence available on record. The judgment is liable to be affirmed.
I have heard arguments put forth by learned counsels for both the parties at length and perused the exposition of law relied upon by learned counsels and exposition of law quoted by me regarding entertainment of second appeal and duties of first appellate court.
I have perused record of trial court and first appellant court and the material available on record.
The present appeal has to be examined, evaluated and appreciated on the basis of aforesaid exposition of law.
Substantial question of law No. 1:
70. Substantial question of law formulated on 25.05.2009 at the time of admission of present appeal relates to the directions given by this Court, while remanding the matter vide order dated 16.12.2004 passed in Second Appeal No. 677 of 1986. It was directed to the first appellate court that first appellate court cannot go beyond the findings recorded by this Court in Second Appeal No. 2585 of 1970 of remand of the matter. The judgment dated 09.09.1986 of first appellate court being contrary to the findings concluded by this Court in the earlier judgment dated 01.08.1980 passed in the second appeal, arising out the same suit, is to be set aside.
71. Therefore, the first appellate court was bound to comply observations made by this Court in the judgment dated 01.08.1980 passed in Second Appeal No. 2585 of 1970, Durga Prasad and another Vs. Dargahi and others and the order dated 16.12.2004 passed in Second Appeal No. 677 of 1986.
72. This Court vide order dated 01.08.1980 specifically observed that earlier first appellate court, while deciding Appeal No. 45 of 1970 had not considered the dispute in light of Article 64 and 65 of the Limitation Act regarding pleadings of defendant in respect of adverse possession. This Court while passing the order dated 01.08.1980 had also observed that the first appellate court has rejected the plaintiffs' case that Dargahi proved to have been residing in Mohalla or in the house from before, do not go to prove adverse nature of defendant. It was also observed by this Court that the plaintiff has not been excluded from those common portion by the defendant of the disputed house, such as, staircase, open space and other things shown in plaint map. It was further observed that for possession being adverse it was essential that the plaintiffs should have been denied access to the property. Further the findings that the defendant was residing with Sitaram and was brought up by him and his wife certainly go to prove a case of implied license.
Along with the aforesaid observations this Court also mentioned in the order dated 01.08.1980 that the sale deed of 1920 is binding on Dargahi and on his heirs. It is not disputed that Bhagwan Das had executed the said sale deed. The same observations were noticed by this Court, while passing the order dated 16.12.2004 and remanded the matter to the first appellate court.
73. There is no substance in the argument of learned Senior Counsel appearing for appellants that the first appellate court could examine the validity of sale deed dated 19.02.1920 again, and the first appellate court could not set aside the findings recorded by the trial court regarding the alleged license given to defendent No. 1-Dargahi, "that the plaintiffs were not successful to prove alleged license of the year 1955".
74. The learned first appellate court decided the Civil Appeal No. 45 of 1970 by taking note of observations of this Court, appreciated and analyzed the evidence available on record and delivered the impugned judgment dated 26.09.2007.
75. It is pertinent to mention here that the learned trial court has decided the Issue Nos. 1 and 3 regarding facts and circumstances in which the sale deed dated 19.02.1920 (Ex.-2) was executed by Bhagwan Das in favour of Sitaram. The defendents pleaded regarding sale deed dated 19.02.1920 that it was a sham and fictitious document executed by Bhagwan Das in favour of Sitaram, only due to, this fact that his third wife, Lakhpati was a young woman and he fell ill due to tuberculosis. The defendant No.1, Dargahi was aged six months old when his mother was died in the year 1916 and he was aged 7-8 years when Bhagwan Das died. Therefore, considering the circumstances of his family he thought that his property may be misappropriated by his third wife, therefore, sham transaction was made and Ex.2-sale deed dated 19.02.1920 was executed by Bhagwan Das.
76. The learned trial court has appreciated the evidence of both the parties and analyzed the sale deed dated 19.02.1920 and observed that the impugned sale deed is a very old document, Bhagwan Das has received amount of consideration of one thousand rupees before the Sub Registrar concerned as consideration for execution of the sale deed. He had also made a mention in it of the fact that his brother Sitaram was separate from him. The defendants cannot say anything contrary to that admission of Bhagwan Das. There are overwhelming documentary evidence from the side of plaintiffs to show that Bhagwan Das and Sitaram were separated and had their separate dealings. The statement of defendant No. 3, Dargahi also indicate the same thing.
77. The trial court has further held that there is, therefore, a presumption that the parties are also separate in all respect. The sale deed dated 19.02.1920 was held not to be invalid for the reasons disclosed by the defendants in their statements, as such they are not co-sharers in the house in question along with the plaintiffs. Hence, both the issues No. 1 and 3 were decided in favour of plaintiffs.
78. The first appellate court has also appreciated the evidence of both the parties in detail and found that the predecessor in title Ram Anand, S/o Wali Deen Kalwar transferred disputed house by means of sale deed dated 12.09.1919 in favour of Sitaram and Bhagwan Das. They occupied equal half share in the disputed house. Bhagwan Das transferred his half share by means of sale deed dated 19.02.1920 (Ex.-2). Therefore, Bhagwan Das had no share in the disputed property.
79. The contention of appellants/ defendants was also considered by the first appellate court regarding health condition of Bhagwan Das and his marriage with third wife, Lakhpati and nature of sale deed dated 19.02.1920. The first appellate court has observed that in sale deed dated 19.02.1920 Bhagwan Das had mentioned his address as Sadar Sultanpur, locality Parakinsganj, Pargana Meeranpur, Tehsil and District Sultanpur by mentioning that he was living separately from his brother Sitaram.
80. The plaintiffs/respondents has produced copy of plaint of Original Suit No. 35 of 1998 (380-Ga/1-5) which was perused by the first appellate court and it was found that Krishna Chandra, S/o Phool Chandra instituted suit for partition of properties including disputed house. Krishna Chandra is descendant of Bhagwan Das. He mentioned in his plaint-380-Ga/1-5 details of properties which are as follows:
(i) House situated in Mohalla Parkinsganj, Chhavani Sadar, Pargana Meeranpur, District Sultanpur:
Boundaries: North - Road South - House of Raja East - House of Hameed West - House of Ganga Dhobi
(ii) House situated in locality Parkinsganj, Chhavani Sadar, Pargana Meeranpur, District Sultanpur:
Boundaries: North - Road South - House of Sheetal Prasad East - House of Habibullah West - Lane
(iii) House situated in locality Civil Lines, Pratapganj, Chhavani, Pargana Meeranpur, District Sultanpur:
Boundaries: North - Nallah South - Campus of Zahid East - House of Om Prakash West - Lane
(iv) House situated in locality Civil Line, Pratapganj, Chhhavani, Tehsil Sadar, Pargana Meeranpur, District Sultanpur:
Boundaries: North - House of Jagannath South - House of Gaya Prasad S/o Babula East - Lane West - Road Galla Mandi Therefore, the first appellate court rightly observed that two houses owned by family of both the parties were situated in locality Parkinsganj, Pargana Meeranpur, Tehsil Sadar, District Sultanpur.
81. Learned defence counsel argued before the first appellate court that death certificate of Bhagwan Das and Harish Chandra who was son of defendant No. 1 were issued at the address of disputed house situated in locality Parkinsganj, whereas, on perusal of aforesaid details of houses mentioned in plaint of O.S. No. 35 of 1998 (380-Ga/1-5), four houses were mentioned as property to be partitioned between the parties.
82. The first appellate court has observed that in death certificate-223-Ga of Harish Chandra, S/o Dargahi only locality Parkinsganj is mentioned, no house number was mentioned in this document, therefore, first appellate court discarded the argument of learned defence counsel that Harish Chandra expired in the disputed house. Although, first appellate court has also mentioned in the impugned judgment that there was only signature of Dargahi Lal, no seal or signature of officer, who issued copy, were not available. This observation could not help the appellants in any way, because the appellant Krishna Chandra had admitted in his plaint of partition suit that there was two houses of family, which were situated in locality Parkinsganj of City Sultanpur. The facts narrated by Krishna Chandra in the aforesaid partition suit fortified that the defendants have concealed the second house situated in locality Parkinsganj.
83. The first appellate court has also analyzed the evidence of D.W.1-Nazeer Mohammad, D.W.2-Ganesh Prasad and D.W.3-Dargahi(Defendant No.1). D.W.3-Dargahi had admitted in his cross-examination that he had not paid any house tax to Nagar Palika, whereas late Sitaram and late Bindeshwari who are the ancestors of plaintiffs and now plaintiffs paid all the taxes to Nagar Palika. He never tried to get mutated his name in the records of Nagar Palika.
84. I have also verified these facts from the statement of D.W.3-Dargahi (defendant No. 1). He has admitted this fact also that Bhagwan Das and Sitaram purchased six houses and two shops in city of Sultanpur, one house is Pratapganj, one in Chowk, in which, Grey Company was tenant, disputed house and two houses situated at Nallah. He has also admitted that he sold a house to the wife of Kedarnath, who is Bipta. Sitaram, S/o Ram Autar sold house situated in locality Majorganj, Sultanpur, which was purchased by him in auction on 16.04.1917, to Bindeshwari, S/o Kashi Agrahari by means of sale deed dated 13.11.1922 (345-Ga/346-Ga).
85. He has also stated regarding Ex.-25 that his address of disputed house was mentioned in plaint of S.C.C. Suit No. 20 of 1953 (314/2-Ga) Bindeshwari and Surajdeen, both sons of Kashiram and others Vs. Dargahi and Phoolchand. The plaintiffs have filed certified copy 314/2-Ga of entries of institution register. On perusal of which it reveals that number of house situated in Parkisnganj has not been mentioned in these details. S.C.C. suit was instituted on 24.02.1953 and decided on 24.04.1953 regarding recovery of Rs.161.
86. The Ex.25 has been weeded out and now it could not be reconstructed, only certified copy of institution register of S.C.C. Suit 20 of 1953 is available, there3fore, there is no substance in the arguments of learned Senior Counsel for appellants that Ex.-25 was not considered by the first appellate court.
87. On the other hand, D.W.3-Dargahi had admitted in this regard in his cross-examination that Bindeshwari, S/o Surajdeen instituted suit against him and his son Phool Chandra 17 to 18 years ago (from the date of his statement, i.e., 04.02.1970). The plaintiffs were not arrayed as party in S.C.C. Suit No. 20 of 1953. Therefore, the facts narrated in plaint regarding address of defendant-Dargahi and Phool Chandra was not binding on the plaintiffs.
88. D.W.3-Dargahi has also admitted that his father Bhagwan Das solemnized second marriage within a year of death of his mother. His mother died when he was six months old. Second wife of his father died within one and half year, then even six and half months his father solemnized his marriage with Lakhpati. Sitaram and his wife Mera brought him up and his marriage was solemnized by Sitaram. When his mother died he resided with Sitaram in house situated in Pratapganj. He has also admitted that fair price shop was allotted to wife of Sitaram and he looked after this shop up to 1942.
89. D.W.3 in his examination-in-chief himself admitted that when his father died he resided with Sitaram in the house situated at Pratapganj. He is residing in disputed house on the basis of mutual understanding from 25 to 26 years ago. He has also stated that when Sitaram and his wife Mera were alive. He also resided in disputed house on the basis of alleged mutual understanding.
90. D.W.3-Dargahi has tried to prove this fact that disputed house and other properties including fair price shop were joint family property and Sitaram was Karta Khandan, but on the basis of sale deed (Ex.-2 ) dated 19.02.1920 defendants had no such right, they are not co-sharers of the disputed house. He has admitted in his cross-examination that only house in which Grey Company was tenant, was sold. He has further stated that other five houses were not recorded in his name. He and his son Phool Chandra sold a house situated in Majorganj locality, which was situated behind the house of Balwanta.
91. The plaintiff-P.W.1 and his witnesses, P.W.2-Mehraji and P.W.3-Bhaiyaram have proved this fact that Bhagwan Das and defendants earlier resided in the house situated at Majorganj locality. Admission of D.W.3-Dargahi fortified evidence of plaintiff-P.W.1-Durga Prasad and witnesses, P.W.2-Mehraji and P.W.3-Bhaiyaram in this regard.
92. D.W.3-Dargahi has also admitted in his cross-examination that the disputed house was Kachcha and his father resided in this house alone, because he was the patient of tuberculosis. Lakhpati resided in house at Pratapganj and food was cooked in that very same house. He has stated that he was separated from plaintiffs 25 to 26 years ago and business was separated 10 to 15 years ago. His mother Lakhpati solemnized marriage with another person and left him 20 to 25 years ago. D.W.3 has stated that he never received rent from tenants of disputed house. He has stated that his father Bhagwan Das died in 1924 in the disputed house, then Sitaram renovated it.
93. From the statements of D.W.3 it reveals that his father Bhagwan Das shifted in the house situated at Pratapganj and resided with Sitaram, then his statement that he resided in the disputed house from life time of Sitaram and Mera, is not acceptable.
94. D.W.3 in his cross-examination has also stated that Harish Chandra, his son, was aged 2 to 2-1/2 years old, when he died in the year 1952-53. Sitaram expired in 1936 and Mera expired in 1961.
95. Therefore, first appellate court has not discarded death certificate of Harish Chandra only on the ground that no seal or signature of officer, who issued it. The main ground of rejection was that house number and details were not mentioned in it. The plaint instituted by Krishna Chandra, appellant, was also/ rather main ground of rejection of death certificate that two houses of the family were situated in locality Parkinsganj.
96. Learned first appellate court has analyzed document-332-Ga, certified copy of assessment register of the year 1950-55 situated in locality Parkinsganj regarding House No. 620/618 and found that name of Bindeshwari, S/o Sitaram was mentioned as owner. In column of possession, Bindeshwari himself, Kallu, S/o Chhedi, Mahadev, Ram Harak was mentioned.
97. It is also observed that in the document 333-Ga, assessment of the year 1955-60, Bindeshwari, S/o Sitaram was shown as owner. Against portion 227-A and 227-C, name of Dargahi (defendant No.1) has been mentioned, on portion 372-B Kallu, S/o Thakur, Baburam Bakkal is mentioned. On portion 374-D, 276-F and 277-G names of other tenants are mentioned.
98. The first appellate court has also analyzed assessment 336-G, hindi translation-377-Ga, certified copy of house tax register of the year 1925-30 of House No. 618/620, in these documents Sitaram Bakkal shown as owner. In document 338-Ga, hindi translation-339-Ga-340-Ga, certified copy of register/ house documents of the aforesaid house of Bindeshwari, S/o Sitaram, he has been shown as owner. Bindeshwari was shown in occupation of house No. 620/618, i.e., disputed house. Dargahi(Defendant No.1) has not been shown in occupation of disputed house No. 618/620 of the portion 227/A, 227/C in the year 1950-51 and 1954-55.
99. On appreciation and analyzation of evidence of D.W.1-Nazeer Mohammad and D.W.2-Ganesh Prasad, the learned first appellate court has found that D.W.1-Nazeer Mohammad was aged 60-70-80 years and stated that Dargahi is in possession of disputed house from 20 to 25 years ago. This statement is contradictory to the statement/ admission of D.W.3-Dargahi, because this period comes to the year 1945, as observed by the learned first appellate court.
100. Sitaram renovated the disputed house in the year 1926. The learned first appellate court has analyzed in this regard the document 350-Ga/1-2, copy of report dated 23.01.1943 regarding application of Sitaram to construct tin shed, document 351-Ga/1-2 order passed by Municipal Board dated 08.04.1926 and 352-Ga/1-2 application dated 08.04.1926 moved by Sitaram and found that Sitaram, S/o Ram Autar ancestor of plaintiffs renovated the disputed house and his son Bindeshwari constructed tin shed and projection.
101. The first appellate court has observed that defendants never tried to get mutated their names on the basis of possession in Municipal Board. The learned first appellate court has held that plaintiffs are descendants of Sitaram, who purchased share of Bhagwan Das by means of sale deed dated 19.02.1920 and it is valid. The defendants are not co-sharer of disputed house. It is observed by the first appellate court that defendants never challenged title of Sitaram or his descendant Bindeshwari and plaintiffs.
102. The learned first appellate court has mentioned that this court also found Sitaram exclusive owner of the disputed property on the basis of sale deed dated 19.02.1920. Bhagwan Das in his life time and defendants have not challenged the sale deed dated 19.02.1920 in any competent court for its cancellation on the grounds claimed by them.
103. Therefore, the findings recorded by the first appellate court regarding sale deed dated 19.02.1920 (Ex.-2) is in consonance with the observations of this Court made in the order dated 01.08.1980 and 16.12.2004. The appellants/ defendants challenged the order of this Court dated 16.12.2004 before Hon'ble apex Court and the Hon'ble Apex Court has dismissed the special leave petition vide order dated 26.04.2005. Hence, the observations of this Court regarding implied license given by the plaintiffs to defendants Dargahi and his family to reside in disputed portion 227-A and 227-C and about sale deed dated 19.02.1920 could not be ignored by the learned first appellate court.
104. The learned first appellate court has formulated point of determination regarding license given by plaintiffs to defendants and their claim regarding adverse possession over the disputed property and perfection of their title on the basis of alleged adverse possession. The first appellate court has analyzed evidence of P.W.1-Durga Prasad, P.W.2-Mehraji, P.W.3-Bhaiyaram, P.W.4-Ram Gulam and P.W.5, Mohd. Yahiya Khan.
105. P.W.2-Mehraji and P.W.3-Bhaiyaram have provided their evidence that defendant No.1-Dargahi himself called them to take permission/ license from P.W.1-Durga Prasad in the year 1955 in the month of Jeth or Asaadh. Dargahi-D.W.3 has admitted in his cross-examination that he was brought up by Sitaram and his wife Mera and resided with them in the house situated at locality Pratapganj, City Sultanpur, they have also told this fact that Bhagwan Das was living separately from Sitaram in the house situated in locality Majorganj.
106. P.W.2 and P.W.3, Mehraji and Bhaiyaram asked P.W.1-Durga Prasad to give permission/ license in their presence and in presence of Kedarnath and Bhagwan Das. Only Mehraji and Bhagwan Das are alive, Kedar Nath and Bhagwan Das have expired. According to the defence witnesses, P.W.1-Nazeer Mohammad and P.W.2-Ganesh Prasad they have no knowledge about the title of disputed suit.
107. D.W.1-Nazeer Mohammad had accepted that he only knows Dargahi. He does not know other residents of locality of Parkinsganj. D.W.2-Ganesh Prasad has stated that Bhagwan Das, when he was alive, resided with Sitaram in the house situated at Pratapganj. Bhagwan Das did not reside in the disputed house. D.W.2-Ganesh Prasad is ignorant about the details of tenants residing in disputed house, because he has given contradictory statement of D.W.3-Dargahi that Raghunath Das was not residing in the disputed house as a tenant.
108. The first appellate court has also observed that P.W.4-Ram Gulam took Kothari on rent 12 to 13 years ago from the date of recording of his statement on 10.10.1979. He has stated that Durga Prasad removed woods kept in Kothari and then Kothari was given to him on rent. He does not know regarding occupation of Dargahi in the disputed house, whether on license or as tenant, but he has stated in his cross-examination that Dargahi was residing in Majorganj from 12 to 13 years ago.
109. D.W.3-Dargahi admitted in his cross-examination that he and his son Phool Chandra sold house situated at Majorganj with Mera wife of Sitaram. He has also admitted that he never received rent from tenants residing in the disputed house.
110. Therefore, observations of first appellate court that since Sitaram and his wife Mera brought up D.W.3-Dargahi /defendant No.1 since his age of six months, hence, after the death of Bhagwan Das at his age 7 to 8 years, he resided with Sitaram at house of Pratapganj. According to his admission he started separate living 25 to 26 years ago from family of Sitaram, whereas he looked after the fair price shop allotted to Mera, wife of Sita Ram.
111. Hence, on the basis of admission of D.W.3-Dargahi, findings recorded by first appellate court, that defendants resided in disputed portion 227-A and 227-C of the disputed house No. 618/620 situated in Parkinsganj on the basis of implied permission/ license, are recorded in correct perspectives. No entry of occupation registered in Municipal Board Sultanpur, prior to the year 1955, could not be produced by the defendants before the trial court. The defendants witnesses, D.W.1, D.W.2 and D.W.3-Dargahi were produced. They could not prove by documentary evidence that prior to 1969-70, when evidence of defence witnesses were recorded by the trial court, the defendants occupied the aforesaid disputed portions 23 to 24 years ago (about in 1945).
112. The learned defence counsel/ learned counsel for appellants of the present appeal relied upon the death certificate of Bhagwan Das and his son, Harish Chandra, aged 2 to 2 and 1/2 year, does not extend any benefit to the defendants regarding the fact that they were in adverse possession of the aforesaid portion of the disputed house, because there was burden of proof on the defendants also that they ought to have pleaded in written statement specifically that when possession of disputed portion of house No. 618/620 became adverse to the plaintiffs and access in the disputed house was restricted/ prohibited in the knowledge of plaintiffs.
113. On the other hand, D.W.3-Dargahi has admitted this fact that his name was never mutated in municipal records. He never tried to challenge the title of Sitaram on the basis of sale deed dated 19.02.1920. He never received rent from other tenants of the disputed house. He has stated that taxes of Municipal Board was paid by Sitaram, after him by his son Bindeshwari and now taxes are being paid by plaintiff-P.W.1, Durga Prasad, who has proved he has received rents from other tenants of the disputed house.
114. Therefore, the details of plaint of S.C.C. Suit No. 20 of 1953 regarding address of Dargahi mentioned in it, of house situated in locality Parkinsganj is not sufficient to prove adverse possession of the defendants. Moreover, plaintiffs were not party to the aforesaid S.C.C. suit, therefore, details mentioned in plaint instituted by Bindeshwari and Surajdeen, S/o Kashi Ram is not binding on plaintiffs. The appellant, Krishna Chandra has himself mentioned in plaint of Suit No. 35 of 1998, Krishna Chandra Vs. Durga Prasad and others, has mentioned details of four houses, out of which two houses were situated in the locality Parkinsganj.
115. Therefore, the details of address of D.W.1-Dargahi mentioned in plaint of S.C.C. Suit No. 20 of 1953 or decree of that suit and death certificate of Bhagwan Das and Harish Chandra does not extend any help to defendants, on the basis of admission of Krishna Chandra and D.W.3-Dargahi.
116. Krishna Chandra is descendant of Bhagwan Das and the descendants of Bhagwan Das are not found to be co-sharers of the disputed house. They never prohibited/ restricted access/ entry of the plaintiffs in the disputed house No. 618/620, perfecting their title on the basis of alleged adverse possession.
117. On the basis of findings recorded by the learned first appellate court it was found that possession of defendants was not proved to be adverse, but rather they were in possession of disputed portion of plaintiffs' house on the basis of implied permission/ license. This finding of first appellate court was in consonance with the observations of this Court made in the orders dated 01.08.1980 and 16.12.2004 while Appeal No. 45 of 1970 was remanded by this Court twice.
118. Therefore, substantial question of law No. 1 is hereby decided against the appellants.
Substantial question of law No.2:
119. The findings recorded by the first appellate court are based on analysis and appreciation of evidence of both the parties, oral as well as documentary. The first appellate court has found possession of defendants/ appellants based on implied permission/ license, therefore, permissive entry/ possession cannot be termed as adverse possession. The defendants cannot claim that they have perfected their right on the basis of alleged adverse possession of portion No. 227-A and 227-C of the disputed house. It is also clear from the observations of the learned first appellate court that the appellants including Krishna Chandra have suppressed this fact that two houses of the family were situated in the locality Parkinsganj of Sultanpur City.
120. As far as, learned counsel for appellants has argued that the learned first appellate court has not considered the provisions of Section 65 of the Limitation Act, 1963 and Section 144 of old Limitation Act, 1908, is concerned, the learned first appellate court has observed in the impugned judgment dated 26.09.2007 that the provisions of Article 65 of the Limitation Act, 1963, comprised of provisions enumerated in Article 136, 137, 138, 140, 141, 144 and 47 of the old Act of 1908 and the period of 12 years has been prescribed regarding institution of suit based on adverse possession. In both the Articles 65 of the Limitation Act, 1963 and Article 144 of the Limitation Act, 1908, prescribe the same period 12 years for institution of suit.
121. Therefore, the argument of learned defence counsel was discarded by the first appellate court relying on various expositions of law by observing that appellants/ defendants were unable to plead and prove specifically this fact when their possession became adverse to the title of plaintiffs.
122. The admission of D.W.3-Dargahi regarding the fact that until 23 to 24 years back, when he was brought up by Sitaram and his wife Smt. Mera and he resided in the house situated at Pratapganj.
123. It is also pertinent to point out here that the defendants never prohibited access of plaintiffs in the disputed house to receive rent from the tenants and to use common portion staircase, open space and other places shown in plaint map. According to P.W.4-Ram Gulam, plaintiffs, had used to store wood in the other accommodation available in the disputed house in the shape of Kothari also, when he took his Kothari on rent.
124. Learned counsel for the appellants has argued that provisions of Article 142 and 144 of old limitation Act, 1908 and Article 64 and 65 of Limitation Act, 1963 are materially and substantially almost different and are not pari materia as held by learned first appellate court.
125. I have perused provisions of Article 65 of Limitation Act, 1963 and Article 144 of Limitation Act, 1908, Article 64 and 65 of Limitation Act, 1963 provide as follows:
Description of Suit Period of Limitation Time from which period beings to run.
64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
Twelve years.
The date of dispossession.
65. For possession of immovable property or any interest therein based on title.
Explanation.--For the purposes of this article-- (a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c)where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.
Twelve years.
When the possession of the defendant becomes adverse to the plaintiff.
126. Article 136 to 144 of Limitation Act, 1908, which provide as follows:
Description of Suit Period of Limitation Time from which period beings to run.
136.- By a purchaser at a private sale for possession of immovable property sold when the vendor was out of possession at the date of the sale.
Twelve years When the vendor is first entitled to possession.
137. Like suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was out of possession at the date of the sale.
Twelve years When the judgment-debtor is first entitled to possession.
138.- Like suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was in possession at the date of the sale.
Twelve years The date when the sale becomes absolute.
139.- By a landlord to recovery possession from a tenant.
Twelve years When the tenancy is determined.
140.- By a remainderman, a reversioner (other than a land lord) or a devisee, for possession of immovable property.
Twelve years When his estate falls into possession.
141.- Like suit by a Hindu or Muhammadan entitled to the possession of immovable property on the death of a Hindu or Muhammadan female Twelve years When the female dies.
142.--For possession of immovable property when the plaintiff while in possession of the property, has been dispossessed or has discontinued the possession.
Twelve years The date of the dispossession or discontinuance.
143.- Lise suit, when the plaintiff, has become entitled by reason of nay forfeiture or breach of condition Twelve years When the forfeiture is incurred or the condition is broken.
144.--For possession of immovable property or any interest therein not hereby otherwise specially provided for.
Twelve years When the possession of the defendant becomes adverse to the plaintiff.
127. On perusal of provisions of Limitation Act, 1908 it reveal that Articles, 142 and 144 of Old Act may only cover case of appellants, other Articles 136, 137, 138, 139, 140, 141 provide another category of facts and circumstances in which possession of true owner became adverse. Provisions of Article 142 and 144 of Old Act are covered by provisions of Article 65 of New Act. Article 142 and 144 of Old Act and Article 65 of New Act prescribe period of limitation 12 years from the period/ the date of the dispossession or discontinuance and when the possession of the defendant becomes adverse to the plaintiff.
128. In the present case, as per pleadings of both parties respondents/ plaintiffs were not dispossessed by the appellants, and defendants/ appellants are only claiming themselves as co-sharers of the disputed house, therefore, Article 142 of the Old Act would not apply to the facts and circumstances of the present case.
129. Hence, provisions of Article 144 of the Old Act and provisions of Article 65 of New Act would apply to the facts and circumstances of the present case. Both the provisions provide period of 12 years for perfecting the title on the basis of adverse possession. Therefore, materially and substantially both these provisions are pari materia.
Rulings on Article 64 & 65 of Limitation Act and Article 142 & 144 of Limitation Act, 1908 A Division Bench of Apex Court in the case of Saroop Singh Vs. Banto, (2005) 8 SCC 330 at page 338 in paras-26 to 31 of its judgment has observed as under:
26. In the instant case, the question of applicability of the Limitation Act does not arise. The appellant-first defendant could have legitimately raised a plea that Indira Devi having died in the year 1961, his possession thereafter has become adverse to the true owner and, thus, on the expiry of the statutory period of limitation he had perfected his title by adverse possession. But, he did not raise such a plea. Even before us, Mr Jain categorically stated that the appellant does not intend to raise such a plea.
27. Articles 64 and 65 of the Limitation Act read thus:
Description of suit Period of Limitation Time from which period beings to run.
64.
For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
Twelve years The date of dispossession.
65. For possession of immovable property or any interest therein based on title. Explanation.--For the purposes of this article--
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession.
Twelve years When the possession of the defendant becomes adverse to the plaintiff.
28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .)
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita [(2004) 1 SCC 271] , SCC para 21.)
31. Yet again in Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] it was observed: (SCC p. 785, para 11) "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
A Division Bench of this Court in the case of Des Raj Vs. Bhagat Ram, (2007) 9 SCC 641 at page 647 in paras-16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28 and 29 has observed as under:
16. We have noticed hereinbefore the factual aspects of the matter which are neither denied nor disputed. Admittedly, the plaintiff-respondent had remained in possession for a long time i.e. since 1953.
17. It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole.
18. In Devasahayam v. P. Savithramma [(2005) 7 SCC 653] this Court opined: (SCC p. 661, para 20) "20. The pleadings as are well known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mofussil court and pleadings in the original side of the High Court."
19. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963 vis-à-vis Articles 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless contrary is proved.
20. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act.
21. In a case of this nature, where long and continuous possession of the plaintiff-respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof.
22. Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the defendant-appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendant-appellants claimed themselves to be co-owners of the plaintiff. A bare perusal of the judgments of the courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first suit to be dismissed in the year 1977. Another suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive suits for partition as the cause of action therefor would be continuous one. But, it is equally well settled that pendency of a suit does not stop running of "limitation". The very fact that the defendants despite the purported entry made in the revenue settlement record-of-rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly goes to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.
23. Express denial of title was made by the plaintiff-respondent in the said suit in his written statements. The courts, therefore, in the suits filed by the defendant-appellants, were required to determine the issue as to whether the plaintiff-respondent had successfully ousted the defendant-appellants so as to claim title in himself by ouster of his co-owners.
25. The parties went to trial fully knowing their respective cases. The fact that they had been co-owners was not an issue. The parties proceeded to adduce evidences in support of their respective cases. Defendant-appellants, keeping in view of the fact that they had unsuccessfully been filing suit for partition, were also not prejudiced by reason of purported wrong framing of issue. They knew that their plea for joint possession had been denied. They were, therefore, not misled. They were not prevented from adducing evidence in support of their plea.
26. Article 65 of the Limitation Act, 1963, therefore, would in a case of this nature have its role to play, if not from 1953, but at least from 1968. If that be so, the finding of the High Court that the respondent perfected his title by adverse possession and ouster cannot be said to be vitiated in law.
27. Mr Dash has relied upon a decision of this Court in Saroop Singh v. Banto [(2005) 8 SCC 330] in which one of us was a member. There is no dispute in regard to the proposition of law laid down therein that it was for the plaintiff to prove acquisition of title by adverse possession.
28. We are also not oblivious of a recent decision of this Court in Govindammal v. R. Perumal Chettiar [(2006) 11 SCC 600 : (2006) 11 Scale 452] wherein it was held: (SCC p. 606, para 8) "In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case."
29. Yet again in T. Anjanappa v. Somalingappa [(2006) 7 SCC 570] it was held: (SCC pp. 574-75, para 12) "12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property."
130. This Court has observed in order dated 01.08.1980 as follows while Second Appeal No. 2585 of 1970 was remanded to the first appellate court:
The title of Sitaram was never before denied by the defendants. Thus title of Sitaram remained untarnished. Under the circumstances articles 65 of the Limitation Act could be applicable and not article 64. The suit was based on title and under Article 65 of the Limitation Act, the adverse possession can mature from the date when the title of the defendant becomes adverse to the plaintiff. I find that stair case, open space and other things shown in the map, which is a part of the plaint and a part of the decree are common. The plaintiff has not been excluded from those common portion by the defendant. For possession being adverse it was essential that the plff. Should have been denied access to the property. Further the finding that the defendant was residing with Sitaram and was brought up by him and his wife would certainly go to prove a case of implied licence.
131. Learned trial court and the first appellate court have held that sale deed dated 19.02.1920 executed by Bhagwan Das in favour of Sitaram is valid. The defendants were not found co-sharers of disputed house by both the courts. Article 64 provides for claim based on previous possession, whereas, Article 65 provides for claim based on title. Primarily, the defendants claimed that they are co-sharers of the disputed house. In alternative they claimed that they have perfected their title, because they are in uninterrupted continuous possession of disputed portions of house for more than twelve years. The provisions of Article 142 of Act, 1908 are pari materia to provisions of Article 64 of Act, 1963 and the provisions of Article 144 of Act, 1908 and Article 65 of Act of 1963 prescribed period of limitation for claim based on adverse possession is more than twelve years. Although, Article 65 comprises provisions of Article 136, 137, 138, 140, 141 and 144 of Act, 1908. The Article 136, 137, 138, 140, 141 and 142 are not applicable to the facts and circumstances of the present case.
132. The provisions of Article 144 of Act of 1908 and Article 65 of Act of 1963 prescribes period for adverse possession is the same, i.e., more than twelve years. Therefore, provisions of Article 144 of Act, 1908 and Article 1965 are pari materia in this regard.
133. On perusal of aforesaid provisions and analyzation and appreciation of both the parties, it reveal that possession over portion of disputed house (227-A and 227-C) was permissive possession/ license, Dargahi and his family entered in the disputed house on the basis of implied permission/ license. Therefore, the defendants/ appellants could not in any way perfected their title regarding disputed property. The plaintiffs are the exclusive owner of the disputed house and the defendants are not the co-sharers. The defendants are compelled to enter in shoes of their ancestors Bhagwan Das.
134. On the basis of exposition of law propounded by Hon'ble Apex Court the defendants were having burden of proof to plead and prove facts of adverse possession claimed by them. They are unable to prove these facts. They cannot take inconsistent plea of adverse possession along with their claimed title being co-sharers of disputed house as held by Division Bench of Hon'ble Supreme Court in the case of Arundhati Mishra (Smt) Vs. Sri Ram Charitra Pandey, (1994) 2 SCC 29 at page 32, contradictory plea of adverse possession cannot be taken by defendants claiming owner of the disputed property.
A Single Judge of this Court in the case of Girish Chandra Singh Vs. Sheo Nath (supra) in paras-34 and 35 of its judgment has observed as under:
34. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla v. Sabitri Bera. [JT 2009 (10) SC 538.]
35. In Gautam Sarup v. Leela Jetly, [(2008) 7 SCC 85.] the Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other.
A Division Bench of Hon'ble Supreme Court in the case of Arundhati Mishra (Smt) Vs. Sri Ram Charitra Pandey, (1994) 2 SCC 29 at page 32 in para-4 of its judgment has observed as under:
4.The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs.
135. Learned counsel for appellants has vehemently argued while quoting the statement of P.W.1-Durga Prasad that Durga Prasad has stated before the trial court that he handed over portion of house to Dargahi, when he was already residing in the house. He has also stated that he gave portion of house on license to Dargahi.
136. On the basis of this statement positive interpretation can be made that since Dargahi was uncle of Durga Prasad and P.W.2-Mehraji and P.W.3-Bhaiyaram were called by him to request P.W.1-Durga Prasad for giving him permission/ license. It may be probable that P.W.1 gave permission/ license to D.W.3-Dargahi to reside in the disputed portion of house because his house was going to fell down and was in dilapidated condition. P.W.1, P.W.2 and P.W.3 witnesses have proved this fact that it was month of Jeth or Asaadh of the year 1955. It is not a damaging statement of P.W.1-Durga Prasad against the plaint version that disputed portion of house was given to Dargahi on his request.
137. As far as defendants relied upon the fact that on the basis of death certificate of Harish Chandra it can be inferred that Dargahi was residing with his family already from the year 1953 or even prior to this year it will not go against the plaintiffs, because death certificate does not disclose House No. 618/ 620 of locality Parkinsganj. The appellant, Krishna Chandra, instituted partition suit No. 35 of 1998 and details of two houses situated in locality of Parkinsganj were mentioned in plaint of the said suit.
138. Therefore, now defendants cannot claim that Harish Chandra died in the disputed portion of the house in the year 1953. On the other hand, this Court has observed vide order dated 01.08.1980 and 16.12.2004 specifically that by mere residing in the disputed portion of house it will not go to prove adverse possession of the defendants and they are obliged to plead and prove this fact specifically when their possession became adverse to the plaintiffs' title.
139. D.W.3 has also accepted that plaintiff, Durga Prasad, is receiving rent from tenants of aforesaid house. He never received rent from tenants of aforesaid house. It is pertinent to mention here that the entry/ access of plaintiffs in disputed house was never restricted/ prohibited from common portions of disputed house. Defendants are unable to prove and plead specifically that when and at which time possession of defendants of disputed portions of house became adverse to title of plaintiffs.
Substantial question of law cannot be formulated only to appreciate any piece of evidence.
A Division Bench of Hon'ble Apex Court in the case of State of Kerala Vs. Mohd. Kunhi, (2005) 10 SCC 139 at page 139 in paras-2 & 5 of its judgment has observed as follows:
2. From the perusal of the impugned judgment it is clear that the High Court in a way has reappreciated the evidence on record and reversed the concurrent findings recorded by the two courts below going beyond the scope of Section 100 of the Code of Civil Procedure.
5. Having considered the submissions made by the learned counsel for the parties and looking to the reasons recorded by the trial court as well as the first appellate court, we have no hesitation in holding that the High Court committed an error in reversing the concurrent findings of fact recorded by the two courts below by reappreciating the evidence placed on record. In fact, no substantial question of law did arise for consideration before the High Court. The substantial question of law formulated by the High Court at the time of admitting the appeal, in our view, again touches the appreciation of evidence in relation to Exhibits A-2 to A-4. We do not think it necessary to record detailed reasons again as we agree with the reasons recorded by the first appellate court in rejecting the case of the plaintiff having regard to Exhibits A-2 to A-4 and the other documentary and oral evidence. Hence, the appeal is allowed. The impugned judgment is set aside. No costs.
140. On the basis of exposition of law of Hon'ble Apex Court mentioned above, substantial question of law cannot be formulated only to appreciate and analyze a piece of evidence/ documentary evidence.
141. On the basis of above discussion, I found following facts and circumstances, which were also analyzed by the first appellate court:
(i) D.W.3 has accepted in his cross-examination that his father Bhagwan Das expired in the year 1924. His father executed sale deed dated 19.02.1920 in favour of his brother Sitaram of his half share. No mutation in Nagar Palika is available during period 19.02.1920 up to 1924 in favour of Bhagwan Das. Name of Sitaram was mutated and he paid taxes of Nagar Palika.
(ii) D.W.3 has also admitted that he was brought up from his age six months by Sitaram and his wife Smt. Mera after death of his mother in 1916. He has also stated that he resided with Sitaram and Smt. Mera in their house situated in locality Pratapganj. D.W.1, D.W.2 and D.W.3-defendant-Dargahi have stated that D.W.3 separated himself 23-24 years ago before the year 1969-1970; when their statements were recorded before the trial court. The first appellate court has considered these statements and observed this period comes in the year 1945.
(iii) D.W.3 has stated that he never paid taxes of Nagar Palika and never challenged title of plaintiffs regarding disputed house. The plaintiffs and their ancestors Sitaram and Bindeshwari paid taxes of house to Nagar Palika. Earlier, Sitaram was recorded in records of Nagar Palika and afterwards Bindeshwari was recorded up to 1955 in these records.
(iv) D.W.3 has stated in his examination-in-chief that under mutual understanding he resided in disputed house after separation from plaintiff's family. D.W.3 was not recorded even in the period 1945-1955 in record of Nagar Palika. The evidence of D.W.1, D.W.2 and D.W.3 is not acceptable in this regard. It is pertinent to mention here that P.W.1, P.W.2 and P.W.3 have proved that D.W.3-Dargahi was residing in house situated at Majorganj. The statement of P.W.1, P.W.2 and P.W.3 is corroborated by evidence of P.W.4-Ram Gulam and D.W.2-Ganesh Prasad in this regard.
(v) P.W.1, P.W.2 and P.W.3 have also proved that disputed portion of House No. 618/ 620 was given to D.W.3-Dargahi on license in the month of Jeth or Asaadh in the year 1955. This fact is corroborated by record of Nagar Palika of the year 1955, in which, D.W.3 is recorded against portion 227-A and 227-C in column of possession.
(vi) There is admission of appellant, Krishna Chandra that two houses of family were situated in locality Parkinsganj according to his plaint instituted for partition of four houses of family of plaintiffs and defendants. This fact has been suppressed by defendants in their written statements. Therefore, death certificates of Bhagwan das (1924) and Harish Chandra (1953) cannot be connected with disputed house No. 618/ 620 of Parkinsganj. The finding in this regard has been recorded by first appellate court in correct perspectives. D.W.3 had not been recorded in 1953 in record of Nagar Palika.
(vii) The statement of D.W.3-Dargahi in respect of the "mutual understanding" to reside in disputed house at the point of his separation from plaintiffs family, squarely covers under "implied permission" and "permissive possession". The same fact has been held by the first appellate court and observed by this Court while passed the order dated 01.08.1980 and 16.12.2004.
(viii) The defendants are claiming ownership of half share on the basis of sale deed of 1919 and pleaded that sale deed dated 19.02.1920 was sham and fictitious documents. They are not able to prove to be co-sharer of disputed house and sale deed dated 19.02.1920 has been found valid by the first appellate court as well as by this Court. The defendants are not entitled to plead inconsistent plea of adverse possession, because, they were claiming themselves co-sharers of disputed house.
(ix) The first appellate court has recorded finding in correct perspectives that possession of defendants on disputed portion 227-A and 227-C is "permissive possession" based on "implied permission/ license" given by plaintiffs. Hence, defendants have not perfected their title on the basis of alleged adverse possession. They are liable to be dispossessed/ evicted from the disputed portion of House No. 618/ 620 situated in locality Parkinsganj of Sultanpur City.
(x) D.W.3 has also accepted that plaintiff, Durga Prasad, is receiving rent from tenants of aforesaid house. He never received rent from tenants of aforesaid house. It is pertinent to mention here that the entry/ access of plaintiffs in disputed house was never restricted/ prohibited from common portions of disputed house. Defendants are unable to prove and plead specifically that when and at which time possession of defendants of disputed portions of house became adverse to title of plaintiffs.
142. For the sake of arguments, if it may be accepted that the defendants were residing in the year 1953 as claimed by them that Harish Chandra, S/o Dargahi expired in the disputed portion of the house, in this regard, it is pertinent to mention here that defendants are unable to prove their possession on the disputed portion prior to 1953 and from the year 1953 up to institution, present suit was well within 12 years of prescribed period for adverse possession, because suit was instituted in the court of Munsif (South), Sultanpur on 22.08.1963.
143. The findings of first appellate court regarding implied permission/ license for occupying the disputed portion of house on behalf of plaintiffs is recorded on the basis of oral as well as documentary evidence. It cannot be said that the impugned judgment dated 26.09.2007 is against the evidence available on record or inadmissible evidence or no evidence. Therefore, substantial question of law No. 2 is hereby decided against the appellants.
144. On the basis of above discussions and exposition of law quoted by me and relied upon by learned counsel for respondents, the appellants are unable to plead and prove their plea of adverse possession perfecting their title regarding disputed portion of the disputed house. The first appellate court has rightly decreed the suit of plaintiffs by recording finding based on oral as well as documentary evidence adduced by plaintiffs in correct perspectives. The expositions of law relied upon by the learned Senior Counsel on behalf of defendants, does not apply to the facts and circumstances of the present case and does not extend any benefit to the appellants.
145. The present second appeal lacks merit. The judgment dated 26.09.2007 is liable to be upheld. Accordingly affirmed and the appeal is hereby dismissed with costs.
146. Interim order dated 25.05.2009, granted earlier, stands vacated.
147. The copy of judgment along with record of first appellate court, trial court and executing court be transmitted for further action and compliance.
Order Date :-23.07.2020 Arvind/Mustaqeem