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IN THE HIGH COURT OF ALLAHABAD
K. M. Dayal, J.
SHYAM NATH AND ORS. - Appellant
Versus
DURGA PRASAD ETC. - Respondents
Second Appeal 1092 Of 1977
Decided On : 02/04/1982
ADVERSE POSSESSION - LIMITATION ACT, 1963 - ARTICLE 65, EXPLANATION (B) - HINDU SUCCESSION ACT, 1956 - SECTION 14 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 51 - ADVERSE POSSESSION - LIMITATION - HINDU LAW - WIDOW'S ESTATE - ABSOLUTE OWNERSHIP - ESTOPPEL - RES JUDICATA - AUCTION PURCHASER - RIGHTS - EXTINGUISHMENT - ADVERSE POSSESSION - BURDEN OF PROOF - PERVERSE FINDING - ADVERSE POSSESSION - LIMITATION - HINDU LAW - WIDOW'S ESTATE - ABSOLUTE OWNERSHIP - ESTOPPEL - RES JUDICATA - AUCTION PURCHASER - RIGHTS - EXTINGUISHMENT - ADVERSE POSSESSION - BURDEN OF PROOF - PERVERSE FINDING:
Fact of the Case:
Plaintiffs filed suits for possession and injunction in respect of two separate portions of a house, alleging that the defendants forcibly occupied the disputed property and made constructions. The defendants claimed title through purchase from the sons of Smt. Yashoda, who was the daughter of Gopal and Bela, the maternal grandfather and grandmother of the plaintiff Beni Madho. The plaintiffs contended that Smt. Yashoda was not the daughter of Gopal and Bela but was the daughter of one Shiv Tahal and that neither Smt. Yashoda nor her sons had any right or possession over the disputed property.
Finding of the Court:
The trial court decreed the suits against the defendants. On appeal, the lower appellate court reversed the trial court's finding and remanded the case for a fresh decision. On a second appeal, the High Court set aside the remand order and directed the lower appellate court to decide the appeals afresh. The lower appellate court dismissed the appeals, holding that Smt. Yashoda was the daughter of Gopal and Bela but that she had lost her rights in the property as a result of the litigation in execution of a decree in the year 1932 and that Beni Madho had been in undisturbed possession since then.
Issues: 1. Whether Smt. Yashoda was the daughter of Gopal and Bela or the daughter of Shiv Tahal. 2. Whether Smt. Yashoda had any right or possession over the disputed property. 3. Whether the defendants acquired any title to the disputed property through their purchase from the sons of Smt. Yashoda. 4. Whether Beni Madho had acquired title to the disputed property by adverse possession.
Ratio Decidendi: 1. The High Court held that the finding of the lower appellate court that Smt. Yashoda was the daughter of Gopal and Bela was perverse as there was no evidence to support it. 2. The High Court held that Smt. Yashoda had no right or possession over the disputed property as she had lost her rights in the property as a result of the litigation in execution of a decree in the year 1932. 3. The High Court held that the defendants did not acquire any title to the disputed property through their purchase from the sons of Smt. Yashoda as Smt. Yashoda had no rights to transfer. 4. The High Court held that Beni Madho had acquired title to the disputed property by adverse possession as he had been in undisturbed possession since 1932.
Final Decision: The High Court dismissed the appeals.
( 1 ) THESE two appeals have been filed by the defendants.
( 2 ) SUITS for possession and injunction in respect of two separate portions of a house have been decreed against them by both the Courts below.
( 3 ) SUIT No. 349 of 1965 was filed by Durga Prasad for possession of the house, removal of construction and for an injunction restraining the defendants from interfering in plaintiffs possession and from making any constructions over the open land Suit No. 350 of 1965 was filed by Beni himself alleging that he was the owner of the entire house. He had transferred the northern portion to Ramji and in his turn Ramji transferred the same to Durga Prasad. Beni madho continued to be the owner of the remaining portion Kha-Ga-Gha-Cha. It was alleged that the defendant No. 1 was the Chairman of the Chuaar Municipal Board and was an influential person of the locality and he was real brother of the other defendants. The defendants forcibly occupied the portion sold to Durga Prasad and forcibly dug the foundation for making new constructions. They fixed a new latch (chain or Sikri) in the door that opened towards the house of the plaintiff and forcibly took possession of that house as well.
( 4 ) THE plaintiffs in both the suits claimed possession over the house, removal of constructions and perpetual injunction against the defendants restraining them from interfering with the possession over the said portion.
( 5 ) THE defence of Shyam Nath and other defendants was that they had purchased the disputed house from Ram Lakhan, Moti and Ram Prasad, sons and heirs of Mst. Yashoda on 19-4-1965 for Rs. 8,000/ -. They were put in possession by the aforesaid vendors, Smt. Yashoda was the sole owner of the entire house and she expired on 17th Jan. , 1964, and the house was inherited by her sons.
( 6 ) IT was pleaded in para 9 of the written statement that the disputed house was purchased by mst. Bela, mother of Mst. Yashoda. and her husband Gopal by virtue of two sale deeds in the years 1890 and 1900, After death of Bela and Gopal Mst. Yashoda became absolute owner in possession having rights of transfer etc. Her sons had rightly sold and delivered possession of the property to the defendants. The rights of Mst Yashoda as pleaded in para 9 are :
"musallam Malik Wa Qabiz Wa Akhtiyar Intkal Harguna Hui. "
This phrase denotes that Mst. Yashoda as an heir of Gopal and Bela became absolute owner in possession with right to transfer. It was further contended that the plaintiff Beni Madho was permitted to reside in the house without any right and had no right to interfere or claim any title to the property.
( 7 ) FURTHER particulars under Order 6, Rule 5, C. P. C, were called for from the plaintiffs in the suits. They were directed to give the details about their title to the disputed property. The same were filed and it was alleged in the same that the entire property belonged to Gopal and his wife smt. Beta, who were the maternal grandfather and grandmother of Beni Madho. Gopal had only one daughter, mother of Beni Madho, who was known as Smt. Kallo and there was no other son or daughter to them. After the death of Gopal and Mst. Bela, Mst, Kallo became the owner as an heir and after her death Beni Madho became the owner. Smt. Yashoda was not the daughter of gopal and Bela as claimed in the written statement but was the daughter of one Shiv Tahal. Neither Smt. Yashoda nor her sons, the vendors, had any right, or were ever in possession over the disputed property and in case it was found that the disputed property belonged to Mst. Yashoda, Beni Madho had matured rights by his adverse and open possession over the disputed property. One Ram Sunder had obtained a money-decree in Suit No. 847 of 1932 from the Court of Munsif, Mirzapur against Beni Madho, The disputed house was attached in the execution of the decree aforesaid. Objections were filed by Smt. Yashoda under Order 21, Rule 58, C. P. C. which were rejected on 22nd Oct. , 1932. T
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