Back
IN THE HIGH COURT OF ALLAHABAD
JASPREET SINGH, J.
Satish Kumar - Appellant
Versus
Ram Kishore - Respondent
Second Appeal No. 554 of 1979
Decided On : 01-09-2021
Civil Procedure Code, 1908 – Sections 2(2),96,100,144 - Suit for Land Possession - Seeking restitution of possession as well as damages and mesne profit - Defendant of Regular Suit being aggrieved from judgment and decree preferred a Regular Civil Appeal under Section 96 C.P.C. which was registered as Regular Civil Appeal - Said appeal was dismissed by Lower Appellate Court by means of a judgment - Thereafter Sri Ram Kishore escalated matter and filed a Second Appeal under Section 100 C.P.C. before this Court registered as Second Appeal No. - During pendency of aforesaid Second Appeal died and he was substituted by his legal heir and widow - Aforesaid second appeal was allowed by a coordinate Bench of this Court by means of judgment and decree holding that plaintiff was not entitled to get possession of property in suit –Whether Lower Appellate Court having held that Trial Court had wrongly recorded that parties did not want to adduce any oral evidence fell into error of not remanding case for setting aside remaining issue as well viz. whether possession had been transferred under Court’s order in previous litigation - Whether was entitled to possession or not
Finding of the court: The expression ‘restitution’ has not been defined in C.P.C., however, it is a doctrine founded on a Maxim ‘Actus Curiae Neminem Gravavit’. The maxim explains that the 'Act of the Court shall harm no one' - Court opinion that order of Lower Appellate Court dismissing the appeal of the appellant Smt. Phoolkali is erroneous. Merely by permitting her to lead evidence in rebuttal is not going to solve the purpose since period for which the property remained in possession of Sri Badri Prasad and with Smt. Phoolkali was also required to be determined. This necessarily requires the parties to lead evidence especially when it was a disputed fact and there is no finding given by the two courts and the mention of the fact in the order that possession has been given to Ram Kishore, does not indicate when and what is the basis of such finding has also not been mentioned. Hence, in this view of the matter, this Court holds that Lower Appellate Court has committed an error in dismissing the appeal of Smt. Phoolkali especially when it found that the parties were prevented from leading their evidence so also for reason that the Lower Appellate Court found that the application under Section 144 C.P.C. has not been decided properly.
Result: Second Appeal allowed
JUDGMENT :
1. In order to appreciate the controversy involved in the instant second appeal, the Court will have to travel back in time to trace the genesis of the dispute. The record indicates that Sri Badri Prasad as plaintiff had instituted a suit against Sri Ram Kishor seeking joint possession of the property in question situated in Village Parishar Khas, Tehsil and District Unnao. The said suit seeking joint possession was instituted in the Court of Munsif, North, Unnao registered as Regular Suit No. 7 of 1966. The said suit was decreed by the Court of Munsif, North, Unnao for joint possession over the plots as mentioned in para 1 of the plaint by means of judgment and decree dated 23.05.1968.
2. Sri Ram Kishore, the defendant of Regular Suit No. 7 of 1966 being aggrieved from the judgment and decree dated 23.05.1968 preferred a Regular Civil Appeal under Section 96 C.P.C. which was registered as Regular Civil Appeal No. 75 of 1968. The said appeal was dismissed by the Lower Appellate Court by means of a judgment dated 13.10.1969. Thereafter Sri Ram Kishore escalated the matter and filed a Second Appeal under Section 100 C.P.C. before this Court registered as Second Appeal No. 355 of 1969. During the pendency of the aforesaid Second Appeal Sri Badri Prasad died and he was substituted by his legal heir and widow Smt. Phoolkali. The aforesaid second appeal was allowed by a coordinate Bench of this Court by means of judgment and decree dated 26.04.1973 holding that the plaintiff (Badri Prasad) was not entitled to get possession of the property in suit. The judgment and decree of the two courts was set aside and the suit was dismissed with cost.
3. It is in this backdrop, that once the suit of Badri Prasad was dismissed, thereafter Ram Kishore preferred an application under Section 144 C.P.C. seeking restitution of possession as well as damages and mesne profit from Smt. Phoolkali (widow of Sri Badri Prasad) as by then Badri Prasad had died. This application was moved before the Court of Munsif North, Unnao and was registered as Misc. Case No. 53 of 1974.
4. The aforesaid application was contested by Smt. Phoolkali by filing her objections. It was contended that all the legal heirs of late Sri Badri Prasad has not been impleaded and for the said reason, the application under Section 144 C.P.C. was not maintainable and consequently was liable to be dismissed. Another objection of Smt. Phoolkali was that she nor her predecessor-in-interest namely Sri Badri Prasad were in possession of the property in question apart from the fact that since the possession was with Ram Kishore as he being a co-tenure-holder, hence, the application was not maintainable.
5. The record would indicate that during the pendency of the aforesaid application, two persons namely Bhagwat Prasad and Ram Narayan had also moved their objections seeking their impleadment on the ground that they are the legal heirs of late Badri Prasad and they are in possession of the property in question, hence, they are necessary and proper parties as their rights are also involved, accordingly, they may be impleaded and be allowed to contest the proceedings.
6. The Court of Munsif, North, Unnao by means of its order dated 27.04.1978 partly allowed the application under Section 144 C.P.C. The Court held that in so far as the relief for possession is concerned, the application was allowed but in absence of any evidence on the issue of damages/compensation/mesne profit, the said relief was refused. The Court also found that the application moved by the third parties namely Bhagwat Prasad and Prem Narayan was not maintainable and the same was also rejected.
7. Being aggrieved against the aforesaid judgment dated 27.04.1978, two appeals under Section 96 C.P.C. came to be filed. One appeal bearing No. 101 of 1978 was filed by Smt. Phoolkali against the judgment dated 27.04.1978 by which the Court had ordered the possession to be restored to Sri Ram Kishore. The other appeal was filed by
Section 2 (2), it would indicate that any determination of a question within Section 144 C.P.C. is deemed to be a decree, consequently, an order passed under Section 144 C.P.C. is appealable as a Reg....
The main legal point established in the judgment is that the decision in R.C.S. No.90/1945 did not operate as res judicata, and the claim under Hindu Women’s Rights to Property Act and Hindu Successi....
Point of law: Considerations in terms of Section 100 CPC arise only when there is substantial question of law and not mere such questions of law or one based on facts. The learned counsel for the res....
The onus of proving the defence of ouster/adverse possession in a suit for partition, the estoppel of the respondents, and the conduct of the second respondent in not filing any suit and obtaining a ....
The main legal point established in the judgment is that a claim of adverse possession and ownership based on an oral gift must be substantiated with clear evidence, and the burden of proof lies with....
The onus lies on the person claiming right, title, and interest to prove the title by producing the necessary documents.
(1) Adverse Possession – Mere long possession will not create any right by way of adverse possession – There should be element of definite refusal of right of ownership or title as well as hostile po....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
