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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
Basuki Devi W/o Late Bhagwan Das – Appellant
Versus
Kunti Devi W/o Late Degree Ram – Respondent
Second Appeal No. 76 of 1998
Decided On : 13-02-2023
Specific Relief Act - Title Suit - Sections 34, 61, 64, 65, 91 of the Indian Evidence Act - The court held that the suit was not barred by section 34 of the Specific Reliefs Act as the plaintiff was not required to ask for possession when the property was in custodia legis. The court also found that the plaintiff failed to prove possession and the defendants had acquired title by adverse possession. The judgment discusses the interpretation of the provisions of the Specific Relief Act and the Indian Evidence Act, and their application to the facts of the case.
Fact of the Case:
The appellant/plaintiff filed a suit for declaration of title to a land, claiming ownership through a sale deed. The defendants contested the suit, claiming adverse possession and challenging the plaintiff's possession and title.
Finding of the Court:
The court found that the suit was not barred by section 34 of the Specific Reliefs Act and that the defendants had acquired title by adverse possession. The court also held that the plaintiff failed to prove possession over the land.
Issues: The issues included whether the suit was barred by section 34 of the Specific Reliefs Act and whether the defendants had acquired title by adverse possession.
Ratio Decidendi: The court held that the plaintiff was not required to ask for possession when the property was in custodia legis and that the defendants had acquired title by adverse possession due to the plaintiff's failure to prove possession.
Final Decision: The Second Appeal was dismissed, and the judgment of the lower court was upheld.
JUDGMENT :
SANJAY KUMAR DWIVEDI, J.
1. Heard Mr. R.N. Sahay, the learned Senior counsel assisted by Mr. Yashvardhan and Ms. Rishika Kaushik, the learned vice counsels appearing on behalf of the appellants and Mr. Sudhir Kumar Sharma, the learned counsel appearing on behalf of the respondent no. 7.
2. On the petition of the appellant vide order dated 24.11.1999, respondent no. 6 was expunged and the appellants were exempted to substitute her legal heirs/successors. By order dated 31.08.2022, the respondent no. 1 was directed to be expunged. The notices upon the respondent nos. 2 and 5 were validly served upon them but they have chosen not to appear in the second appeal. The respondent nos. 3 and 4 have appeared through Mr. V.K. Prasad, the learned counsel appearing for them, however, on repeated call, nobody has appeared on behalf of the respondent nos. 3 and 4 and that is why, this second appeal has been heard.
3. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 17.06.1998 and 27.06.1998, respectively passed by learned 5th Additional District Judge, Giridih in Title Appeal No. 62 of 1984 whereby he has been pleased to reverse the judgment and decree dated 17.07.1984 and 28.07.1984 passed by the learned 2nd Additional Munsif, Giridih in Title Suit No. 18 of 1978/14 of 1984.
4. The appellant/plaintiff instituted the Title Suit No. 18 of 1978/14 of 1984 for declaration of his title to the land of plot nos. 3727 and 3726 of village Burki Suriya described in schedule to the plaint.
5. By the judgment dated 17.07.1984, the learned 2nd Additional Munsif, Giridih has been pleased to decree the suit in favour of the appellant/plaintiff. Aggrieved with that, the respondent/defendants filed the Title Appeal No. 62 of 1984 which was decided by the judgment dated 17.06.1998 and by the said judgment, the appeal was allowed and the judgment of the learned trial court was reversed. Aggrieved with that, the present second appeal has been filed by the appellants/plaintiffs.
6. The case of the plaintiffs is that the land measuring 9 decimals together with a house over a portion of it fully described in the schedule of the plaint belonged to Hulak Ram and Others. It was sold by court in auction sale in execution Case No. 218 of 1940 of the court of Munsif, Hazaribagh in which Hulak Ram and others were the judgment debtor. It was auction purchased by the decree holder Mangar Ram of Village Logbedih for a sum of Rs. 1200/- on 8.2.1941 and the said auction sale was duly confirmed by the court on 18.3.1941 and a sale certificate dated 19.04.1941 was issued to the purchaser Mangar Ram. Then he obtained delivery of possession over the suit property through the process of the court and continued to remain in possession over the said land as an absolute owner thereof. It is further said that by virtue of a registered sale deed dated 2.2.1945 the plaintiff purchased the said land and the house for Rs.1500/- got possession over the same and has been paying the rent therefor. The plaintiff further claimed that the suit land appertaining to plot nos. 3727 and 3726 in part which is clear from the boundaries mentioned in the sale certificate, but due to some in advertence plot no. 3726 is not specifically mentioned in the sale certificate. The plaintiff further averred that the old house on the suit land was in dilapidated condition and in full down and only a portion of it is standing thereon. The remaining land was under cultivation by the plaintiff so long as the plaintiff was residing at Suriya. Subsequently he came to Giridih and has been residing here with his family for the last 10 years with the result that the said land has remained fallow thereafter.
7. The case of the defendants is that the defendant nos.2 to 5 are the descendants of one Jhari Ram to whom the suit property originally belonged Hulak Ram, defendant no. 5 and Digree Ram father of defendants 2 to 4 were the judgment debtors in the aforesaid e
The main legal point established in the judgment is that the plaintiff was not required to ask for possession when the property was in custodia legis, and the defendants had acquired title by adverse....
Point of law - The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i....
The main legal point established in the judgment is the interpretation of documents and the application of the principle of adverse possession in property disputes.
A suit for declaration may be maintained even if the plaintiff is not in possession, provided a consequential relief is sought, as mutation does not establish ownership.
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