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2023 Supreme(Jhk) 911
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
Deodhari Sao – Appellant
Versus
Most.Ghama, wife of late Dular Chand Sao – Respondent
Second Appeal No.135 of 2012
Decided on : 16-01-2023
Advocate Appeared:
For the Appellants :Mr. Manjul Prasad, Mr. Rajesh Kumar Gupta , Advocate
For the Respondents:Mr. Manindra Kumar Sinha, Advocate
The onus of proving possession and title lies with the claimant, and the principles of limitation, adverse possession, waiver, estoppel, and acquiescence are crucial in property disputes.
Headnote:
Limitation - Property Dispute - [Title Suit No. 53 of 1996] - [Limitation Act, 1963, Section 3, 14, 18, 19, 20] - The court considered the aspects of limitation, adverse possession, waiver, estoppel, and acquiescence and dismissed the suit based on the judgment in the case of 'Dwarika Sonar & Ors. v. Most. Bilguli & Ors.' reported in 2003 (2) JLJR 708. The appellants failed to produce sufficient evidence to prove their possession and title, and the defendants' evidence was affirmed by the grant of rent receipts. The onus of proving possession and title lay with the appellants, and as there was no illegality found in the judgments of the trial court and the appellate court, the appeal was dismissed.
Fact of the Case:
The appellants filed a suit for a decree declaring their joint right, title, interest, and possession over certain lands, which was dismissed by the trial court and affirmed by the appellate court. The respondents contested the suit on various grounds including limitation, adverse possession, and lack of evidence of joint possession.
Finding of the Court:
The court found that the suit was filed after more than 28 years from the revisional record of right, and considering the judgment in a similar case, dismissed the suit based on limitation, adverse possession, waiver, estoppel, and acquiescence. The appellate court also held that the appellants failed to produce sufficient evidence to prove their possession and title, and there was no illegality found in the judgments of both courts.
Issues: The issues revolved around the appellants' claim of joint right, title, and possession over the lands, and the respondents' defenses of limitation, adverse possession, waiver, estoppel, and acquiescence.
Ratio Decidendi: The court's decision was based on the application of the Limitation Act, 1963, and the principles of adverse possession, waiver, estoppel, and acquiescence. The onus of proving possession and title lay with the appellants, and their failure to produce sufficient evidence led to the dismissal of the suit.
Final Decision: The Second Appeal No.135 of 2012 was dismissed, and any pending petition was also dismissed.
JUDGMENT :
1. Heard Mr. Manjul Prasad, the learned Senior counsel assisted by Mr. Rajesh Kumar Gupta, the learned counsel appearing on behalf of the appellants and Mr. Manindra Kumar Sinha, the learned counsel appearing on behalf of the respondents.
2. This Second Appeal has been filed being aggrieved and dissatisfied by the judgment dated 23.06.2012, decree signed on 07.07.2012 passed by the learned District Judge, Koderma in Title Appeal No.1 of 2004 whereby the learned appellate court has been pleased to affirm the judgment dated 24.11.2003, decree signed on 8.12.2003 passed by the learned Munsif, Koderma in Title Suit No.53 of 1996.
3. The Title Suit No. 53 of 1996 was instituted by the appellants/plaintiffs for a decree declaring their joint right, title, interest and possession upon the suit lands mentioned in Schedule-C lands and their possession over the lands to that extent be confirmed and if found dispossessed then their possession may be restored. Further relief in the form of decree declaring that suit lands jointly belonged to the two settlees Jitani Devi and Most. Mohani Devi and they were in joint possession over the same at the time of revisional survey and as such the revisional survey entry in the name of Jitani Devi only is erroneous and not binding upon the plaintiffs has also been prayed in the suit. The plaintiffs had further prayed that by an order of permanent injunction the defendants may be permanently restrained from interfering with the peaceful possession of the plaintiffs over the suit land and they may be further restrained from making any construction thereupon and for changing the physical feature of the suit land. By the judgment dated 24.11.2003 of the learned Munsif, Koderma the said suit was dismissed and the appellants/plaintiffs have filed the Title Appeal No.1 of 2004 which was decided by the judgment dated 23.6.2012 and the title suit and the decree were affirmed by the learned appellant court. Aggrieved with that, the present second appeal has been filed.
4. The case of the defendants/respondents is that respondents/ defendants had appeared and they had filed their written statement. The defendants had taken plea that suit is not maintainable and is further barred by law of limitation, waiver, acquiescence and estoppel and is grossly under valued. It is further case of the defendants that there was no unity of title and possession amongst the sons of common ancestor Bedu Sao immediately after his death and lands of khata no. 48 area 55 decimals G.M khas land was never reclaimed and acquired by the said Bedu Sao and same was acquired by Tipan Sao out of his own fund and exclusively reclaimed by him under a hukumnama granted by the then land lord and Lekho Sao and Tipan Sao did not form joint Hindu Family and Tipan Sao was not karta and plaintiff no.1 has been managing her own affairs since her husband's death and it is false to say that Schedule 'B' lands was jointly acquired by Jitani and Most. Mohani out of joint family fund and same was acquired by Most. Jitani out of her own money by Hukumnama on 25th Bhado 1354 sal fasli on payment osalami Rs. 181/- and on fixation of yearly rent of 8 rupees and 4 anas and she was put in khas possession and she always paid rent first to zamindar and then to State and was granted rent receipts and it is false to say that after the revisional survey in 1967 Most. Mohani and Jitani began to cultivate the suit lands separately upon their respective ½ share and it is also false that defendant no.1 Dularchand Sao was working as Amin in the revisional survey and he dishonestly got suit lands entered in the khatiyan of revisional survey in the sole name of Jitani. The further case is that plaintiff's were never in possession on the suit lands and they had made similar claims over khata no. 81 of village Nawalsahi in case no. 28 of 1962-63 but plaintiff no.1 did not succeed and in 144 Cr.P.C proceeding also plaintiff's never asserted the date and year of the a
