Back
JHARKHAND HIGH COURT
Sanjay Kumar Dwivedi, J.
Saryu Prasad Gupta and Ors. – Defendants
versus
Jamuna Prasad and Ors. – Respondents
Second Appeal No.129 of 2006
Decided on 7.2.2023
Civil Procedure Code, 1908 – Section 105 – Suit for declaration of right, title and interest in property – Appellant/defendants were debarred from filing the written statement – However, in civil revision, liberty was provided to raise all points under Section 105 C.P.C and decree is passed against appellants/defendants – Once liberty was provided by High Court to raise all points under Section 105 C.P.C it was incumbent upon trial court atleast to give finding upon documents which have been brought on record by way of filing the petition by appellants/defendants which are in nature of public document – Even in absence of any written statement that those documents were required to be dealt with by appellate court, particularly, considering that a liberty was provided by High Court to raise all grounds under Section 105 C.P.C. – This is a case where suit has not been done satisfactorily – Impugned Judgment set aside and matter remanded to Trial Court. (Paras 17 to 21)
Result: Second Appeal disposed of with observation and direction.
JUDGMENT
Heard Mr. Ayush Aditya, the learned counsel appearing for the appellants and Mr. M.K. Laik, the learned Senior counsel appearing on behalf of the respondents.
2. This second appeal has been filed being dissatisfied with the judgment dated 15.02.2006 and following thereupon the decree signed on 01.03.2006 passed by learned District Judge, passed in Title Appeal No.44 of 2004 whereby the learned appellate court has dismissed the appeal and affirmed the judgment dated 20.09.2004 and decree dated 04.10.2004 passed by the learned Munsif, Hazaribagh in Title Suit No.112 of 2001.
3. The Title Suit No.112 of 2001 was instituted by the respondents/plaintiffs for declaration of right, title and interest and for possession in respect of the land appertaining to Holding No.248-A, New Municipal Holding No.183/125, New Ward No.16, situated in Mohalla Boddom Bazar, morefully described in Schedule-“A” to the foot of the plaint (suit land in short). The plaintiffs have further sought an injunction besides an award of cost of the suit. The suit was decreed in favour of the plaintiff.
4. Aggrieved with this, the appellants filed the Title Appeal No.44 of 2004 which was dismissed by the judgment dated 15.02.2006 affirming the judgment of the learned trial court dated 20.09.2004. Aggrieved with this, the present second appeal has been filed.
5. The plaintiffs’ case is that the suit property described in scheduled “A” of the plaint originally belonged to Hazaribagh Municipality in the year 1924. The grandfather of the plaintiffs namely Mathura Sao had taken permanent settlement of schedule “A” property from Hazaribagh Municipality by terms of a registered deed bearing No.709 dated 04.04.1924. Thereafter, the grandfather of the plaintiffs constructed a residential house and continued in possession thereof on payment of rent to the Municipality till his lifetime. Upon his death, his son Kanhai Sao and the plaintiffs being legal heirs of Mathura Sao came and continued in possession. Kanhai Sao died in the year 1974 leaving behind the plaintiffs.
6. However, suddenly on 14.11.2001 the defendants along with their men came over the Schedule “A” properties and attempted to take forcibly possession by evicting the plaintiffs therefrom. However, on resistance on the part of the plaintiffs, the situation was avoided but the defendants gave a threatening that they need the house for opening a club for Gupta caste and, therefore, they will take forcible possession.
7. Under the aforesaid circumstances, the suit was filed for the reliefs aforementioned.
8. That the suit was admitted on 29.11.2001 and thereafter the defendants appeared in the suit on 20.12.2001.
9. However, by order dated 30.01.2003 the defendants were debarred from filing written statement on the ground that no written statement was filed within time fixed in view of Order-VIII, Rule-1 of the Code of Civil Procedure which was held to be mandatory.
10. The defendants/appellants were debarred from filing written statement in the suit by the order dated 30.01.2003 against the order, the appellants/defendants preferred Civil Revision before this Court which was numbered as Civil Revision No.61 of 2004 which was dismissed on 20.05.2004 with liberty to take all the grounds under section 105 of the C.P.C. Pursuant thereto, the appeal was filed after the decree passed by the learned trial court.
11. This second appeal was admitted by the order dated 04.08.2009 on the following substantial question of law:—
(i) Whether the judgment and decree of the first appellate Court is vitiated in law for not considering the points raised by the defendants-appellants which was permitted by the High Court while dismissing the writ petition being W.P.(C) No.4185 of 2004?
(ii) Whether the Court of Appeal below has correctly appreciated the provision of Section 105 C.P.C?
(iii) Whether the Court of Appeal below has failed to exercise its jurisdiction by rejecting the prayer of the defendants to recall the
All contesting parties in suit must get fair opportunity to contest suit on merits in accordance with law.
The importance of considering public documents and providing a fair opportunity to all parties to contest the suit on merits.
The court affirmed that the state can claim adverse possession, emphasizing the necessity for plaintiffs to prove their title and possession to succeed in such suits.
Appellate court cannot admit additional evidence under Order 41 Rule 27 CPC absent due diligence proof or necessity for judgment; must record reasons; erroneous allowance despite negligence and delay....
Second appeals under CPC S.100 do not permit re-appreciation of evidence; concurrent findings upheld absent perversity or substantial question of law. Adverse possession claim fails without rebutting....
The plaintiffs failed to establish title and possession over the suit land, and the suit was invalid due to non-joinder of necessary parties.
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
