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2007 Supreme(SC) 1404
2007(8) Supreme 145
Supreme Court of india
Tarun Chatterjee & P. Sathasivam, JJ.
Girja Kumar & Ors. — Petitioners
versus
State of Himachal Pradesh & Anr. — Respondents
Appeal (civil) 6616 of 2000
Decided on : 31-10-2007
important point
When the plaintiff asserts that the impugned order was passed behind his back, the onus shifts on the defendant to prove that the order was a valid order passed by competent authority.
Headnote:Code of Civil Procedure, 1908 — Section 100 — Second Appeal — Suit for declaration of title on ground of adverse possession — Decieed by Trial Court — Appeal — Dismissed by Appellate Court — High Court on record appeal dismissed suit as being time barred — Held High Court eared in dismissing appeal only on ground of limitation that for without any — Pleading or sufficient materials on record and without adviciling to and decideing question of adverse possession — Impugned judgment of High Court set aside and matter remanded back to High Court for decision afresh. (Paras 5 to 7)
Facts of the case :
According to the plaintiffs-appellants, they were in possession of the suit land for more than 40 years. The suit was filed in 1989 for declaration of title on the ground of adverse possession and for injunction.
The trial Court decreed the suit and the appeal filed by the defendants was dismissed by the first appellate Court. When the second appeal was filed before the High Court it remanded the matter to the trial Court for taking further evidence. On a challenge to the said order of the High Court, Supreme Court set aside the order, restored Second Appeal to the file of the High Court and directed it to dispose of the same afresh on the available evidence.
High Court then allowed the second appeal, set aside the judgments and decrees passed by the trial Court as well as by the lower appellate Court and dismissed the suit of the plaintiffs as being time barred.
Findings of the Court:
The High Court should have decided the question of adverse possession.
Result : Appeal partly allowed.
JUDGMENT
P. Sathasivam, J.—
1.The plaintiffs who succeeded before the trial Court, lower appellate Court and lost their suit before the High Court filed the above appeal.
2.Brief facts required for the disposal of this appeal are as follows :
“According to the plaintiffs-appellants, they were in possession of the suit land for more than 40 years. The suit was filed in 1989 for declaration of title on the ground of adverse possession and for injunction. The trial Court decreed the suit and the appeal filed by the defendants was dismissed by the first appellate Court. When the second appeal was filed before the High Court, the High Court, after finding that there is no evidence, remanded the matter to the trial Court for taking further evidence. The said order of the High Court was challenged before this Court by way of C.A. No. 1348 of 1999. By judgment dated 8.3.1999, this Court, after recording a finding that the High Court was in error and not justified in sending the matter back to cure any lacuna in the evidence, set aside the order, restored Second Appeal No. 304 of 1992 to the file of the High Court and directed it to dispose of the same afresh on the available evidence.
3.Pursuant to the said direction, the High Court formulated two substantial questions of law which are as under:
“1.Whether the suit was barred in view of the provisions of Section 163(3) of the H.P. Land Revenue Act, 1953?
2.Whether the suit of the plaintiff, in the facts of the case that on 2nd April, 1970, an order of ejectment was passed ordering the ejectment of the plaintiff under Section 163 of the H.P. Land Revenue Act, 1954, can be said to be within the period of limitation?”
While considering the first question, the High Court concluded that inasmuch as an order of ejectment of the plaintiffs from the land in dispute under Section 163 of the H.P. Land Revenue Act, 1953 was passed on 2.4.1970 by the Settlement Officer, the suit having been filed about 19 years after such order is barred by limitation. After arriving at such conclusion on question No.1, the High Court, without going into the second question or adverting to the case of the plaintiffs i.e., adverse possession, by order dated 04.01.2000, allowed the second appeal, set aside the judgments and decrees passed by the trial Court as well as by the lower appellate Court and dismissed the suit of the plaintiffs as being time barred. Challenging the said order, the plaintiffs have filed the present appeal.
4.Heard Mr. Himinder Lal, learned counsel appearing for the appellants and Mr. Vivek Singh Attri, learned counsel appearing for the respondents.
5.We have already extracted the first substantial question of law which relates to limitation. The High Court proceeded the said issue on the ground that though the order of ejectment of the plaintiffs from the land in dispute came to be passed by the Settlement Officer on 2.4.1970 however, the plaintiffs filed the Suit No. 41 of 1989 only on 23.2.1989 before the Senior sub-Judge, Mandi which was barred by limitation. The High Court, in arriving at such a conclusion, relied on Section 163 of the H.P. Land Revenue (Amendment) Act No.15 of 1989. Learned counsel for the respondents herein pointed out that the order said to have been passed on 2.4.1970 by the Settlement Officer was not communicated to them. It is also their claim that they were not issued notice or afforded an opportunity to put forth their case before making an entry/passing an order by the Settlement Officer. In fact, neither before the Courts below nor before the High Court, the proceedings dated 2.4.1970 was produced by the defendants. In fact, there is no specific plea in the written statement as to the limitation and no issue was framed by the trial Court and no point was determined by the lower appellate Court. We verify the defence stated in the written statement, issues framed by the trial Court and the points determined by the lower appellate Court. There is no such plea and issue as
