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IN THE HIGH COURT OF ALLAHABAD
Virendra Kumar-II, J.
Krishna Chandra, Son of Phool Chandra and ors. – Appellants
Versus
Smt. Sarju Dei (died), Widow of Durga Prasad and ors. – Respondents
Second Appeal No. 7 of 2008
Decided On : 23-07-2020
Code of Civil Procedure, 1908 – Section 100 – Limitation Act – Articles 64, 65, 142, 144 – Death Certificate – First appellate court has set aside judgment and decree delivered by Court of Munsif in Regular Suit by which suit of respondents/plaintiffs was dismissed – During pendency of original suit before trial court defendant No.1 had expired and his legal representatives were substituted – Present matter was decided by trial Court Munsif vide judgment – Appellants assailed impugned judgment in Civil Appeal – Second Appeal has been preferred assailing impugned judgment and decree delivered by Court of Civil Judge (Senior Division) –Held, Appellants are unable to plead and prove their plea of adverse possession perfecting their title regarding disputed portion of the disputed house – First appellate court has rightly decreed the suit of plaintiffs by recording finding based on oral as well as documentary evidence adduced by plaintiffs in correct perspectives – Expositions of law relied upon by the learned Senior Counsel on behalf of defendants, does not apply to the facts and circumstances of the present case and does not extend any benefit to the appellants – Second Appeal Dismissed (Paras 144, 145)
Fact of the Case:
Appellate court has set aside judgment and decree dated 28.02.1970 delivered by the Court of Munsif (South), Sultanpur in Regular Suit No. 209 of 1963, by which suit of respondents/plaintiffs was dismissed. During pendency of original suit before the trial court defendant No.1-Dargahi had expired and his legal representatives were substituted. The present matter was decided by learned trial Court Munsif South Sultanpur vide judgment dated 28.02.1970. The appellants assailed impugned judgment dated 28.02.1970 in Civil Appeal No. 45 of 1970.
Finding of the Court:
Appellants are unable to plead and prove their plea of adverse possession perfecting their title regarding disputed portion of the disputed house – First appellate court has rightly decreed the suit of plaintiffs by recording finding based on oral as well as documentary evidence adduced by plaintiffs in correct perspectives – Expositions of law relied upon by the learned Senior Counsel on behalf of defendants, does not apply to the facts and circumstances of the present case and does not extend any benefit to the appellants.
Result: Second Appeal Dismissed
JUDGMENT :
1. Heard, Shri Mohammad Arif Khan, learned Senior Counsel, assisted by Shri Mohammad Aslam Khan and Shri Mohiuddin Khan, learned counsel for the appellants and Sri I.D. Shukla, learned counsel for the respondents.
2. The present Second Appeal No. 7 of 2008 : Krishna Chandra and others Vs. Smt. Sarju Devi (since dead) and others, has been preferred assailing impugned judgment and decree dated 26.09.2007 delivered by the Court of Civil Judge (Senior Division), Court No. 15, Sultanpur in Civil Appeal No. 45 of 1970.
3. The first appellate court has set aside judgment and decree dated 28.02.1970 delivered by the Court of Munsif (South), Sultanpur in Regular Suit No. 209 of 1963, by which suit of respondents/plaintiffs was dismissed. During pendency of original suit before the trial court defendant No.1-Dargahi had expired and his legal representatives were substituted. The present matter was decided by learned trial Court Munsif South Sultanpur vide judgment dated 28.02.1970. The appellants assailed impugned judgment dated 28.02.1970 in Civil Appeal No. 45 of 1970.
4. Learned District Judge, Sultanpur dismissed aforesaid Appeal No. 45 of 1970 vide impugned judgment dated 10.11.1970. The plaintiffs/respondents preferred Second Appeal No. 2585 of 1970 : Durga Prasad and another Vs. Dargahi and others, before this Court, which was decided on 01.08.1980 by coordinate Bench and matter was remanded to the first appellant court.
Therefore, Civil Appeal No. 45 of 1970 was again decided by first appellate court of Additional Civil Judge-II, Sultanpur vide impugned judgment dated 09.09.1986. The first appellate court again dismissed the suit of plaintiffs/respondents. Hence, Durga Prasad (since dead) through his legal representatives Sarju Devi and Bhaiya Ram preferred Second Appeal No. 677 of 1986 : Durga Prasad and another Vs. Smt. Chameli Devi and others. This court decided Second Appeal No. 677 of 1986 on 16.12.2004 and again remanded the matter to the first appellate court.
5. The appellants of present second appeal preferred Special Appeal to Leave (Civil) assailing judgment dated 16.12.2004 passed by this court in Second Appeal No. 677 of 1986. Hon'ble Apex Court had dismissed it on 26.04.2005.
6. The first appellate court of Civil Judge (Senior Judge), Court No. 15, Sultanpur again decided Civil Appeal No. 45 of 1970 and delivered impugned judgment and order dated 26.09.2007. Learned first appellate court has set aside impugned judgment dated 28.02.1970 delivered by the trial court of Munsif South, Sultanpur and decreed the suit of plaintiffs. Learned first appellate court has directed to the appellants/defendants to vacate the disputed house within one month from the date of judgment.
7. The appellants/defendants have preferred present second appeal assailing impugned judgment and order dated 26.09.2007 delivered by first appellate court.
8. It is pertinent to mention here that during proceedings of Second Appeal No. 2585 of 1970 and Second Appeal No. 677 of 1986 and proceedings of Appeal No. 45 of 1970, original plaintiffs and defendants have expired and their legal representatives have been substituted.
9. In Second Appeal No. 7 of 2008, originally Durga Prasad and Bhaiya Ram were the plaintiffs and Dargahi, Phool Chand, and Prem Chand, Deep Chand were defendants, out of them Durga Prasad and Bhaiya Ram-plaintiffs and Dargahi, Phool Chand and Prem Chand defendants have expired.
10. The present appeal was admitted on 25.05.2009 and coordinate Bench has passed order dated 25.05.2009 and formulated substantial question of law after hearing learned counsel for the appellants. The order dated 25.05.2009 is reproduced hereunder:
"Heard Sri D.C. Mukherjee, learned counsel for the appellants and Sri S.K. Mehrotra, Advocate who has put in appearance on behalf of the caveator-respondents.
Learned counsel for the appellants argued that
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