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1952 Supreme(Nagpur) 86
HIGH COURT OF NAGPUR
Sinha, Mudholkar
BANSILAL RAJARAM – Appellant
Versus
KESARI AND ORS – Respondent
Second Appeal No. 68 of 1947
Decided on : 24-07-1952
K G Chendke, S N Kherde, Advocates
An adverse decision in a claim case under Order 21, Rule 58, Code of Civil Procedure, is not binding on a judgment-debtor who was not a party to the proceedings.
Headnote:
ADVERSE POSSESSION - LIMITATION - ORDER 21, RULE 58, CODE OF CIVIL PROCEDURE - EFFECT OF ORDER - ADVERSE DECISION IN CLAIM CASE - JUDGMENT-DEBTOR NOT A PARTY - WHETHER BINDING ON HIM - SALE DEED - INTENTION TO CONVEY TITLE - ONUS OF PROOF - POSSESSION - CO-OWNERS - LIMITATION AND ADVERSE POSSESSION.
Fact of the Case:
Plaintiff claimed that his deceased father had purchased the house in suit in 1901 by a registered sale deed executed by Deopal. He claimed that he had been in possession ever since his purchase. His case was that the original Defendant Chintaman had been allowed to occupy the house as a licensee in the year 1929-30 and again in 1939 for a few months but the original Defendant refused to vacate the house. Hence this suit for possession and damages by way of rent at one rupee per month for three years. This suit was instituted on the 14th March 1945.
Finding of the Court:
The lower appellate Court held that Harbaji and Deopal were brothers, that Chintaman was Harbaji's son that there had been no partition between the two branches of the family, and that the sale deed could take effect only in respect of the one half share of the vendor Deopal. It further held that the Defendants had failed to substantiate their case that the sale deed Ex. P-1 was not intended to convey title to the Plaintiff. It also held that the case of partition between the two branches of the family had also not been made out. According to the finding of the lower Appellate Court, the Plaintiff had failed to prove his version that the Defendants were mere licensees in possession. It further held that the suit was barred by time as the Plaintiff was never in possession of any part of the house.
Issues: 1. Whether the adverse decision in the proceeding under Order 21, Rule 58, Code of Civil Procedure, by the Court's order dated 19-2-1934 vide Ex. P-2) barred the Defendants' title? 2. Whether the suit was barred by limitation or by adverse possession of the Defendants?
Ratio Decidendi: 1. The order passed by the Court in the claim case referred to above barred all the rights of Chintaman and his successors, the Respondents. However, Chintaman not being a party to those proceedings could not be adversely affected by the result of that order. 2. The Plaintiff came into Court with the distinct allegation that he and his deceased father had all along been in possession of the whole house ever since the execution of the sale deed until the Defendants came in as mere licensees and then refused to vacate the house. Hence, in such a case Article 142 is applicable. On the Plaintiff's case, he was in possession, and his possession discontinued later resulting in dispossession as a result of the alleged licensees' claiming to be the owners of the property. The Plaintiff never laid any foundation in the pleadings or in the evidence for the contention that the Defendants were mere co-owners with the Plaintiff and as such no question of limitation or adverse possession could arise.
Final Decision: The appeal fails and is dismissed with costs.
1. The Plaintiff is the Appellant in this second appeal, which is directed against the decision of the Additional District Judge, Washim, reversing that of the Civil Judge, Class II, of the same place in a suit in ejectment.
2. The Plaintiff-Appellant claimed that his, deceased father had purchased the house in suit on 11-4-1901 by a registered sale deed executed by Deopal. He claimed that he had been in possession ever since his purchase. His case was that the original Defendant Chintaman had been allowed to occupy the house as a licensee in the year 1929-30 and again in 1939 for a few months but the original Defendant refused to vacate the house. Hence this suit for possession and damages by way of rent at one rupee per month for three years. This suit was instituted on the 14th March 1945.
3. The Defendants' case was that the house in question was the ancestral property of Harbaji, the deceased father of Chintaman, and Deopal, that there was a partition some time before 1900, as a result of which the eastern half fell to the share of Harbaji while the western half to that of Deopal, that the sale deed relied upon by the Plaintiff was a bogus transaction without consideration and without any intention to convey title, that as a matter of fact the bogus deed had. been executed with an ulterior motive, that in spite of the nominal sale the family continued in possession as before, and that the suit was barred by limitation.
4. The trial Judge passed a decree in favour of the Plaintiff to the extent of one half share in the property holding that the sale deed of the year 1901 was not a bogus or a nominal transaction as alleged by the Defendant, that the Plaintiff had been in possession of the moiety share purchased by him, and that the Plaintiff's case of licence had not been proved, nor was the Defendants case of adverse possession. From this decree, partially in favour of the Plaintiff and partially in favour of the Defendants, there was an, appeal by the Plaintiff, and a cross-objection, by the Defendants.
5. The lower appellate Court held that Harbaji and Deopal were brothers, that Chintaman was Harbaji's son that there had been no partition between the two branches of the family, and that the sale deed could take effect only in respect of the one half share of the vendor Deopal. It further held that the Defendants had failed to substantiate their case that the sale deed Ex. P-1 was not intended to convey title to the Plaintiff. It also held that the case of partition between the two branches of the family had also not been made out. According to the finding of the lower Appellate Court, the Plaintiff had failed to prove his version that the Defendants were mere licensees in possession. It further held that the suit was barred by time as the Plaintiff was never in possession of any part of the house.
6. Another question had been raised before the lower Appellate Court, as to whether the proceedings under Order 21, Rule 58, Code of Civil Procedure, in 1934, to be discussed in detail hereinafter, had any effect on the Defendants' title and answered the question in the negative. Hence this second appeal by the Plaintiff.
7. The learned Counsel for the Appellant urged that the adverse decision in the proceeding under Order 21, Rule 58, Code of Civil Procedure, by the Court's order dated 19-2-1934 vide Ex. P-2) barred the Defendants' title. It appears that a third party had obtained a decree for money against Chintaman, the predecessor-in-title of the Defendants-Respondents. That creditor attached the house in question in execution proceedings, and Rajaram, the Plaintiff's father, had filed a claim case objecting to the attachment on the ground that the property was his. The Court passed an order releasing the house from attachment. Hence it has been contended that no suit having been instituted, either by the decree-holder or by the judgment-debtor against that order releasing the property from attachment the order had become
