IMPORTANT POINT
Adverse Possession – When a possession is sought on the ground of Sada-deed of Dar Raiyat, law of adverse possession is not available.

JUDGMENT

Second Appeal No.142 of 2009

Let the Second Appeal No.142 of 2009 be detached from Second Appeal No.175 of 2009 in view of the submission of the learned counsel for the appellant that he has got no instruction to argue the matter so far as Second Appeal No.142 of 2009 is concerned.

In view of his such submission, Second Appeal No.142 of 2009 is dismissed as not pressed.

Second Appeal No.175 of 2009

Heard Mr. Ayush Aditya, learned counsel for the appellant.

2. This second appeal has not been admitted, however notice has been issued upon the respondents and notice has been effected upon some of the respondents and notice has not been effected upon some of the respondents and it has been reported that respondent no.4 has left for his heavenly abode. Thus, this second appeal is already abated against respondent no.4. This second appeal is not admitted as yet. It is well settled when substantial question of law is involved the second appeal is required to be admitted and thereafter notice is required to be issued.

3. In that view of the matter, the Court has heard at length the learned counsel for the appellants on the point of admission on substantial question of law.

4. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 30.04.2009 (decree signed on 08.05.2009) by the learned 2nd Additional District Judge, Hazaribagh in Title Appeal No. 5 of 2006 allowing the appeal and thereby setting aside the judgment dated 28.02.2006 and decree dated 22.03.2006 passed by the learned Subordinate Judge-V, Hazaribagh in Title Suit No.11 of 1974.

5. The appellants/plaintiffs instituted Title Suit No.11 of 1974 for declaration of title and confirmation of possession of plaintiffs with respect to suit plot no.305 under Khata No.76 of village Ramgarh along with further declaration that defendant no.5 is tenant in possession over the portion of suit land under plaintiffs and defendant nos. 1 to 4 have no right, title, interest and possession over the suit land. Alternatively it was also prayed for recovery of khas possession of the suit land or any portion thereof, if the plaintiffs are found dispossessed and permanent injunction against defendant nos. 1 to 4 with respect to the suit land has also been prayed. The said suit was decided by the learned trial court vide judgment dated 28.02.2006 and by the said judgment, the learned trial court has been pleased to decree the suit in favour of the appellants/plaintiffs. Aggrieved with that judgment, the respondents/defendants have moved before the learned appellate court in Title Appeal No.5 of 2006, which was decided vide judgment dated 30.04.2009 and by the said judgment, the learned appellate court has been pleased to allow the appeal and the judgment passed by the learned trial court has been set aside. Aggrieved with that judgment, the appellants/plaintiffs have filed the present second appeal.

6. The appellants/plaintiffs have instituted Title Suit No.11 of 1974 alleging therein that lands of plot no. 305 under khata no. 76 measuring an area of 0.52 acres was recorded in the name of Pachkauri Dusadh and lands of plot no. 307 under khata no. 68 wan recorded in the name of Dularchand Dusadh, who was the uncle of said Pachkauri Dusadh. One Prayag Narayan and his brother purchased the lands of plot no. 305 and 307 some 41-42 years ago in the name of Radha Krishna Prasad, who was minor at that time. Since there was some legal restrictions in transfer of the lands, said Pachkauri Dusadh and Dularchand Dusadh received consideration money from Prayag Narayan and put him and Radha Krishna Prasad in possession over the said two plots sometime in the year 1924-25. Dularchand Dusadh died issueless and so Pachkauri Dusadh inherited him and came in possession of all the properties left by Dularchand Dusadh. Later on, Prayag Narayan obtained a sada permanent Dar-raiyati settlement deed from Pachkauri Dusadh on annual rent of Rs.15/- and Rs. 18/- respectively. Prayag