C O M M O N J U D G M E N T

S.A.No.477 of 1999 is preferred by the defendants in O.S.No.115 of 1984 on the file of the Junior Civil Judge, Bhainsa. The plaintiff filed the suit seeking declaration of title and recovery of possession of the suit land to an extent of Ac.6-00 in Sy.No.62 more fully described in the plaint schedule and for mesne profits.

2. S.A.No.478 of 1999 is preferred by the defendants in O.S.No.119 of 1984 on the file of the Junior Civil Judge, Bhainsa. The suit was filed by the plaintiff in the said suit for declaration of title and possession of the suit land to an extent of Ac.4-29 guntas in Sy.No.62/A with mesne profits.

3. The trial was conducted and both parties adduced both oral and documentary evidence in both the suits. As the defendants are common in both the suits, they were clubbed and a common Judgment was delivered by the trial Court decreeing both the suits as prayed for without costs. The defendants, being aggrieved by the common Judgment of the trial Court, dated 27-01-1997, preferred A.S.No.15 of 1997 on the file of the Senior Civil Judge, Nirmal against the Judgment and decree in O.S.No.115 of 1984 and A.S.No.16 of 1997 on the file of the Senior Civil Judge, Nirmal was filed against the decree and Judgment in O.S.No.119 of 1984. The learned Senior Civil Judge dismissed both the Appeals by confirming the Judgment and decree of the trial Court in all respects. Being aggrieved by the common Judgment of the Appellate Court, the defendants preferred the present Appeals. As both the Appeals arose out of the common Judgment, they are clubbed and this common Judgment is delivered.

4. The plaintiffs in both the suits purchased the respective suit properties from the father of the defendants through registered sale deeds dated 21-07-1972 and 12-01-1973. Afterwards, the defendants filed a suit for partition covered by O.S.No.12 of 1973 on the file of the District Munsiff, Bhainsa on 01-03-1973. In the said suit, it was claimed that the suit properties are ancestral properties of late Linganna and D-1 in the said suit filed a written statement denying that the suit lands are ancestral properties and further asserted that the suit land is his selfacquired property. The suit was decreed on 31-03-1975 and the defendants took possession of the property by dispossessing the plaintiff on 09-05-1981 by treating the suit properties as ancestral properties. But by taking into consideration the evidence adduced by the plaintiffs, the trial Court came to a conclusion that the suit properties were self-acquired properties of the father of the defendants and he executed the registered sale deeds in favour of the plaintiff and they are not liable for partition among the coparceners, therefore, the plaintiffs are entitled for the decrees as prayed for and it was confirmed by the Appellate Court. Being aggrieved by the same, the present Appeals are preferred.

5. In the grounds of Appeal, the Appellants raised the following substantial questions of law to be considered by this Court:

1. The Court below having noted that the plaintiff is dispossessed by plaintiff on 9-5-1981 in execution of the decree the plaintiff failed to invoke the provisions of Or.21, R.98 of CPC for restoration of possession within one year and as such dismissed the suit as barred by limitation.

2. The Court below having noted that het plaintiff was dispossessed in execution of the decree by a competent Court on 9.5.1981 and the suit was presented for declaration of title and possession on 12.12.1984 dismissed the suit as barred by limitation as per Arts.58 to 113 of the Indian Limitation Act, 1963 and have seriously erred in allowing the plaintiff to invoke Arts.64 and 65 for restoration of possession of the suit land.

3. The Court below having framed an issue as to whether the suit schedule property is liable to be partitioned in equity towards the share of Linganna the father of the appellant and the vendor of the plaintiff failed to record the fi

Click Here to Read the rest of this document