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1992 JLJ 120
M.W. Deo, J.
Kailashnarayan and others v. Keshav Singh and another
S. A. No. 507 of 1977; against the judgment of Shri V.D. Saxena, Additional District Judge, Shajapur, passed in Civil Appeal No. 11-A of 1974, reversing the judgment and decree passed by Shri Shambhu Singh, Civil Judge, Class 2nd, Agar, in Civil Suit No. 38-A of 1971; Decided on 5.8.1991.
(2) Evidence Act, 1872 -. S. 66 -- objection of notice in trial Court or in first appellate Court -- cannot be allowed to be taken in second appeal. [Para 8
(3) Registration Act, 1908 -- Ss. 57(5), 58(1) and 60 -- secondary evidence found permissible -. certified copy of a will constitutes valid and legal evidence to prove the same. [Para 10
(4) Court -- old matter -- Court will not permit by pertechnical objections to service. AIR 1937 Nag. 43 and 1957 JLJ 540. [Para 10
(5) Limitation Act, 1963 --Art. 64 -- governs the cases where plaintiff bases his claim on possessory title -- under this Article claim is not based on proprietary title. [Para 11
(6) Limitation Act, 1963 -- Art. 65 -- claim for restoration of possession under u is based on proprietary title primarily. [Para 11
(7) Possession --jurisprudential concept of -- it is made of corpus i.e., actual physical control over the property which denotes physical possession and animus i.e.; intention and exercise of right to possess as owner to the exclusion of others. [Para 16
(8) Limitation Act, 1963 -- Art. 65 -- ‘Khandahar‘ adjacent with other property of plaintiff -- defendant claiming perfection of title by adverse possession -- claim based on user of the premises for easing, collecting cowdung, tying cattle, etc. -- intention to claim hostile title not proved -- exclusion of owner‘s possession also not established -- defendant does not acquire title by adverse possession. ILR 16 Born. 338, AIR 1951 MB 80, 1955 MBLJ 193, AIR 1938 Mad. 454, AIR 1924 Lah. 669, AIR 1916 Nag. 90, AIR 1939 All. 161 and AIR 1971 Mys. 139 relied on. [Paras 16 to 19
(9) Civil P.C., 1908 -- S. 100 -- perverse or no finding in eye of law -- may be reversed in second appeal. [Para 20
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 65 ,oa 66 && ijarqd] [kaM ¼5½ && jftLVªhd`r foy dh izekf.kr izfrfyfi && fo"k; oLrq fojks/kh i{kdkj }kjk lgh gksuk Loh—r fd, x, && vly fojks/kh i{kdkj ds dCts esa ftlus mldk u"V gks tkuk Lohdkj fd;k && fcuk lwpuk ds f}rh;d lk{; Bhd xzg.k fd;k x;kA , vkb vkj 1952 ukxiqj 54 voyafcrA ¿ in 7À ¼2½ lk{; vf/kfu;e] 1872 && /kkjk 66 && fopkj.k U;k;ky; vFkok izFke bfÙkyk viby U;k;ky; esa fd;k x;k lwpuk dk vk{ksi && f}rh; viby esa djus dh vuqKk ugha nh tk ldrhA ¿ in 8À ¼3½ jftLVªh—r vf/kfu;e] 1908 && /kkjk 57 ¼5½] 58¼1½ ,oa 60 && f}rh;d lk{; vuqKs; ik;k x;k && mldks lkfcr djus ds fy, foy dh izekf.kr izfrfyfi fof/kekU; rFkk oS/k lk{; xfBr djrh gSA ¿ in 10À ¼4½ U;k;ky; && iqjkuk ekeyk && U;k;ky; vfr&rduhdh vk{ksiksa dk cpk jguk vuqKkr ugha dj ldrkA , vkb vkj 1937 ukxiqj 43 ,oa 1957 ts ,y ts 540 voyafcrA ¿ in 10À ¼5½ ifjlhek vf/kfu;e] 1963 && vuq- 64 && mu ekeyksa dks fofu;fer djrk gS ftuesa viuk nkok dCtk fo"k;d gd ij vk/kkfjr djrk gS && bl vuqPNsn ds v/khu nkok lkaifÙkd gd ij vk/kkfjr ugha gSA ¿ in 11À ¼6½ ifjlhek vf/kfu;e] 1963 && vuq- 65 && mica/k ds v/khu dCts ds izR;korZu dk nkok && izkFkfedr% lkaifÙkd gd ij vk/kkfjr gSA ¿ in 11À ¼7½ dCtk && fof/k &‘kkL=h; ladYiuk && og **dkiZl** vFkkZr~ laifÙk ij okLrfod oLrqxr fu;a=.k tks oLrqxr dCts dk |ksrd gS rFkk **,fuel** vFkkZr~ vU; ds viotZu ds lkFk Lokeh dh Hkk¡fr dCts ds vf/kdkj dk vk‘k; ,oa iz;ksx] ls cuk gSA ¿ in 16À ¼8½ ifjlhek vf/kfu;e] 1963 && vuq- 65 && oknh dh vU; laifÙk ds ik‘oZLFk [kaMgj && izfroknh }kjk izfrdwy dCts }kjk gd dh ifjiw.kZrk dk nkok && nkok ey&Rkx] xkscj ds laxzg] i‘kqvksa dks ck¡/kus vkfn ds fy, ifjlj dh mi;ksDrk ij vk/kkfjr && fojks/kh gd ds nkos dk vk‘k; lkfcr ugah && Lokeh ds dCts dk viotZu Hkh LFkkfir ugha && izfroknh dks izfrdwy dCts }kjk gd vftZr ugha gksxkA vkb ,y vkj 16 eqacbZ 338] , vkb vkj 1951 e/; Hkkjr 80] 1955 ,e ch ,y ts 193] , vkb vkj 1938 enzkl 454] , vkb vkj 1924 ykgkSj 669] , vkb vkj 1916 ukxiqj 90] , vkb vkj 1939 bykgkckn 161 ,oa , vkb vkj 1971 eSlwj 139 voyafcrA ¿ in 16 ls 19À ¼9½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 && fof/k dh n`f"V esa foi;ZLr vFkok ‘kwU; fu"d"kZ && f}rh; viby esa myVk tk ldrk gSA ¿ in 20À
M. W. Deo, J. -- 1. This is plaintiff's second appeal who having succeeded in the trial Court, were non-suited by the first appellate Court.
2. It is not in dispute that Nathusingh was the owner of property situated in village Kanad. Ex. P-1 is the certified copy of a registered will dated 27.2.1933 executed by Nathusingh under which Nathusingh bequeathed some property to Munnalal and one house to Daryaosingh who was son from Mainabai, misteress of Nathusingh, To the south-west of the house bequeathed to Daryaosingh, is a Khandhar which is the subject-matter of this litigation. In this second appeal learned counsel for the respondents did not dispute that it is this Khandhar which is adjacent to the house of Daryaosingh in the direction of south-west and is mentioned in the copy of the will which indeed could not be disputed in view of the averment and factual foundation in the last two lines of clause 5 of para 3 of the certified copy. As such there is no dispute about either the description or identity of this Khandhar. It may be noted here that the present appellants arc the legal representatives of Daryaosingh, It may also be noted that Nathusingh died in the year 1936.
3. The case of the appellants in brief was that the aforesaid will was executed by Nathusingh and as such they are the owners of the Khandhar under the will of which the certified copy is Ex. P-1. Munnalal, the respondent (L.R. of deceased respondent No.1 Keshavsingh) disputed the title of the appellants to the Khandhar as he wanted to raise walls on the Khandhar and put a roof on it and, therefore, applied to the Gram Panchayat in that connection. Munnalal thus dispossessed the appellants and refused to restore the possession despite notice dated 26.5.1971. Hence, the appellants filed a suit claiming to be owners of the property and consequent possession and mesne profits in respect of the Khandhar.
4. In this second appeal, the appellants mainly raised four questions. First that the will has been proved. In as much as the original will has been lost, Ex. P-1 could be proved as certified copy of the will according to law. Secondly, it was argued that the appellants had proved ownership of the suit 'Khandhar' under the will. It was thirdly contended that the claim of the appellants plaintiffs was not barred by limitation as it was not covered by Article 64 of the Indian Limitation Act, 1963 but was governed by Article 65. It was lastly contended that the respondent Munnalal was wrongly held by the lower appellate Court to have proved his adverse possession over the suit Khandhar resulting in extinguishing the title of the appellants and, therefore, the suit was wrongly dismissed.
5. Coming to the first contention, the learned counsel for the respondents referred to Sections 65 and 66 of the Indian Evidence Act to say that the loss of original will having not been proved, no foundation was laid for adducing secondary evidence of the will and that notice to adduce secondary evidence was not given as required by Section 66 ibid.
6. The point was adequately met by learned counsel for the appellants by referring to the statement of the plaintiff in his examination-in-chief where he categorically stated that original will was with the respondent and that its copy is Ex. P-1. A subsequent sentence by the plaintiff to say that the Khandhar belongs to all the four brothers jointly but all the papers and will are with him could not, on a fair interpretation, mean that he meant the original will at this place. For, the plaintiff had categorically stated earlier that the original will was with the defendant and what he had was the copy Ex. P-1. The learned counsel further referred to the admission of Munnalal (DW. 1) who admitted in para 3 that Nathusingh had executed and bequethed his property by a registered will dated 27.2.1933 and that the original will has been lost. He further admitted that Ex. P-1 is the certified copy of the same will. Let us complete the r
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