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ALLAHABAD HIGH COURT
Jaspreet Singh, J.
Dropadi Devi and Ors. —Appellants
versus
Shiv Chandra Dixit —Respondent
Second Appeal No.83 of 2014
Decided on 23.1.2020
(A) Civil Procedure Code, 1908 – Order 22 Rule 1 – Abatement of appeal – On death of a party to appeal, if no application is made by party concerned to appeal or by legal representatives of deceased on whom right to sue has devolved for substitution of their names in place of deceased party within 90 days from date of death of party, such appeal abates automatically on expiry of 90 days from date of death of party. (Para 59)
(B) Limitation Act, 1963 – Article 65 – Adverse possession – Once defendant acquired exclusive title of property, in terms of Article 65 defendant had right to seek possession against plaintiff by instituting counter claim – Plaintiff did not setup any plea of adverse possession rather he only claimed that he had some share in property in question and moreover that share also could not be established by him and that it has been held that defendant is exclusive owner of entire property – Possession was handed over to plaintiff in terms of order passed by this Court – Possession which was handed over was subject to adjudication of rights of respective parties in civil suit – Once in civil suit, two courts have concurrently come to a conclusion that title remained with defendant, there is no error committed by two courts regarding decree of counter claim in respect of relief of possession which could not be said to be time barred. (Para 70)
Result: Appeal Partly allowed.
JUDGMENT
Jaspreet Singh, J.—Heard Sri Mohd. Arif Khan, learned Senior Advocate along with Sri Deepankar Kumar and Mohd. Aslam Khan for the appellants and Sri B.K. Saxena, learned Counsel along with Sri Amit Jaiswal, Ms. Shreya Saxena and Sri Utkarsh Srivastava, for the respondents.
2. The instant second appeal has been preferred against the concurrent judgment and decree passed by the two courts below whereby the Additional Civil Judge, Senior Division, Court No. 24, Lucknow by means of its judgment and decree dated 08.10.2010 dismissed the suit of the plaintiffs-appellants and allowed the counter claim of the defendant-respondent. The aforesaid judgment and decree has been affirmed by the First Appellate Court in Regular Civil Appeal No. 155 of 2010 by A.D.J., Court No. 2, Lucknow by means of its judgment and decree dated 05.02.2014, while dismissing the appeal.
3. The aforesaid second appeal was admitted by means of the order dated 01.04.2014 on three substantial questions of law which shall be discussed later, while dealing with them. However, in order to appreciate the controversy involved in the above second appeal, certain brief facts giving rise to the instant appeal are being noticed hereinafter.
4. The plaintiffs-appellants instituted a suit for cancellation of a will deed as well as a sale deed in the Court of Munsif, South, Lucknow which was registered as R.S. No. 615 of 1992. Primarily, the pleadings were that the house bearing No. 57/1984 Mohalla Tilpurwa, Ward- Hussainganj, District Lucknow is a Joint Hindu Family Property of the ancestors namely Balbhadra Dubey which was not partitioned as yet.
5. It was also pleaded that the plaintiffs are in possession of the entire property in question and they had executed a registered power of attorney in favour of one Sri Harish Kumar Trivedi to look after the property as well as for the purpose of instituting and conducting the litigation. It was specifically stated that on 30.08.1992, the defendant namely Sri Shiv Chandra Dixit had attempted to forcibly occupy the property in question which was resisted by the plaintiff. It is then that the defendant while claiming title to the property indicated that he had purchased the property by means of a registered sale deed dated 17.07.1971 from Smt. Gaga Dei who was the daughter of Late Sri Shiv Shanker Dubey.
6. It was also pleaded that as the property in question was a Joint Hindu Family Property and as such Sri Shiv Shanker Dubey, the father of Smt. Gangadei, did not have a right to execute any will allegedly dated 12.12.1947 and consequently Smt. Gangadei did not have any right to execute sale deed dated 17.07.1971, hence the defendant did not get any right.
7. The plaint was later on amended and by amendment it was specifically incorporated that Sri Shiv Shanker had instituted a Suit bearing No. 718 of 1950 before the Munsif City, Banaras seeking partition of the Joint Hindu Family Property. In the aforesaid suit of 1950 a defence was raised by the plaintiffs herein, that the suit instituted at Banaras was bad for partial partition, inasmuch as, the property bearing No. 57 of 1984, Mohalla Tilpurwa, Hussainganj, Lucknow was also a part of the Joint Hindu Family Property which ought to have been included in the Schedule of property for which the partition was sought by Sri Shiv Shanker Dubey.
8. The Court at Banaras by means of its judgment and decree dated 07.10.1955 specifically provided that the property situate at Lucknow should be included in the Schedule of properties at the time of preparation of final decree and in case if Sri Shiv Shanker Dubey does not include the said property then his suit shall stand dismissed. It was also pleaded that despite the aforesaid direction the plaintiff of the partition suit filed at Banaras, Sri Shiv Shanker Dubey did not include the aforesaid property nor challenged the aforesaid order before any superior court, accordingly, his suit was dismissed by means of the order dated 15.12.1
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