1979 Supreme(Pat) 84

PATNA HIGH COURT
Shivanugrah Narain, J.
Govind Yadav
Versus
Deoki Devi
Appeal From Appellate Decree No. 569 of 1974 ;
Decided On : APRIL 3, 1979

A plea of title by adverse possession can be raised for the first time in second appeal if all the facts necessary to constitute a plea of adverse possession are stated in the plaint and the facts were dealt with by the trial court.

Headnote:

ADVERSE POSSESSION - TITLE BY ADVERSE POSSESSION - BIHAR RESTORATION OF BAKASHT LANDS AND REDUCTION OF ARREARS OF RENT ACT, 1938 - SEC. 3(1), 6(1)(D), 6(2)(D) - INTERPRETATION - POSSESSION OF LAND BY VIRTUE OF ORDER OF COLLECTOR - CONTINUOUS POSSESSION FOR MORE THAN 12 YEARS - ACQUISITION OF TITLE BY ADVERSE POSSESSION - PLEA OF TITLE BY ADVERSE POSSESSION NOT SPECIFICALLY PLEADED - RAISING OF PLEA FOR THE FIRST TIME IN SECOND APPEAL - PERMISSIBILITY - CONDITIONS.

Fact of the Case:

Plaintiffs filed a suit for declaration of title and recovery of possession of 7.5 acres of land comprised in survey Plot No. 491 of Khata No. 676 of village Hathband in the District of Monghyr. The land was sold to the original plaintiff No. 1 Keshav Yadav under a registered sale deed in 1940. In 1936, the Court of Wards, which was in charge of the Bahadurpur Estate, got the entire holding of Keshav Yadav auction sold in execution of a certificate obtained against him for arrears of rent. Keshav Yadav filed a petition before the Collector for restoration of the holding under Section 3(1) of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938 (the Act). The Collector, by his order dated 21-6-1940, rejected the objection raised by the landlord on the ground that the settlement in favour of third party was made after the 22nd day of March 1938. The Collector directed that the raiyat shall be entitled to be restored to the possession of 9.5 acres of land from the South. Thereafter, Keshav Yadav applied for a writ of delivery of possession and, according to the service report of the peon, possession was delivered to Keshav Yadav on 28-12-1940. Later, there were proceedings under Sec.144, Cr. P.C. and ultimately a proceeding under Sec.145, Cr. P.C. between one of the plaintiffs and the defendant first Party in respect of the aforesaid lands and the learned Magistrate by his order dated 18-9-1966 declared the possession of the defendant first party over the said lands. Thereafter, on 1-8-1968, the present suit was instituted by the respondents-plaintiffs.

Finding of the Court:

The court found that the plaintiffs had acquired title to the suit lands by adverse possession for more than 12 years and that the right and the title of the defendants therein, if any, was extinguished and the plaintiffs had perfected their title thereto.

Issues: 1. Whether the plaintiffs acquired title to the suit lands by virtue of the order of the Collector dated 21-6-40? 2. Whether the plaintiffs acquired title to the suit lands by adverse possession? 3. Whether the plea of title by adverse possession can be raised for the first time in second appeal?

Ratio Decidendi: 1. The court held that the order of the Collector dated 21-6-40 was null and void as it was passed without issuing any notice to the defendants who were in possession of the suit lands on the date the order was passed. 2. The court held that the plaintiffs had acquired title to the suit lands by adverse possession for more than 12 years. The court found that the plaintiffs were in possession of the lands after the delivery of possession in December, 1940 till after the order under Sec.145, Cr. P.C. that is till 15-9-1965. Or in there words, the plaintiffs were in possession continuously for more than 15 years. The court also found that the possession of the plaintiffs was nec vi, nec clam, nec precario and was sufficient to confer on the plaintiff tenancy right in the land possessed. 3. The court held that the plea of title by adverse possession could be raised for the first time in second appeal as all the facts necessary to constitute a plea of adverse possession were stated in the plaint and the facts were dealt with by the trial court.

Final Decision: The appeal was dismissed.