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0SHIV SAGAR TIWARI

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CASE NO.:

Appeal (civil) 1117 of 2001

PETITIONER:

SANTOSH HAZARI

Vs.

RESPONDENT:

PURUSHOTTAM TIWARI (DEAD) BY LRS.

DATE OF JUDGMENT: 08/02/2001

BENCH:

CJI, R.C. Lahoti, & Briijesh Kumar.

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J

R.C. Lahoti, J.

Leave granted.

On 4.3.1983, the plaintiff-appellant filed a suit for

declaration of title and recovery of possession and issuance

of permanent preventive injunction restraining the defendant

from interfering with the possession of the plaintiff over

the suit property described as khasra No.41/1 area 1.09

acres (0.441 hectares) situated in Village Patharia,

District Damoh. According to the plaintiff, the defendant

had illegally dispossessed the plaintiff from his possession

over 110x80 ft. area of land out of the suit property on

20.8.1981. The defendant in his written statement denied

all material averments and in addition submitted that the

defendant has been in possession of the suit property since

1940-41, i.e. since the times of his grand father. The

suit filed by the plaintiff was alleged to have been barred

by limitation in view of the same having been filed more

than 12 years after the date of dispossession of the

plaintiff. A plea of the defendant having acquired title by

adverse possession was also raised in the written statement.

The trial Court, on an evaluation of oral and

documentary evidence adduced by the parties, found that

ownership in the suit property vested in the plaintiff and

the defendant had forcibly occupied the disputed area of

110x80 ft. sometime in the year 1980-81. The defendants

plea of adverse possession was negatived and the suit filed

by the plaintiff was held to have been filed within the

period of limitation. On these findings the suit was

decreed in its entirety.

The defendant preferred an appeal. The learned

additional district Judge held that in so far as ownership

over the suit land is concerned, the same vested in the

plaintiff. However, he found that the possession of the

land was given to the plaintiff by the State Government on

6.11.68 but the plaintiff has not shown to have taken any

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steps for dispossessing the defendant and the plea raised by

the plaintiff of the defendant having forcibly occupied the

land in dispute on 20.8.1981 did not appear to be tenable.

On these findings the appeal was allowed and in reversal of

the judgment and decree of the trial Court the suit was

directed to be dismissed.

The plaintiff preferred a second appeal which has been

dismissed in limine by the High Court passing a brief order

that the matter stood concluded by findings of fact and no

substantial question of law arose for determination. The

aggrieved plaintiff has filed this appeal by special leave.

On 4.5.1999 this Court directed a notice to be issued to

the defendant-respondent on the limited question as to why

the matter should not be remanded to the High Court for

deciding the appeal after framing the question of law.

We have heard the learned counsel for the parties and

perused the judgments of the trial Court and the first

appellate Court. We have also perused the application dated

12.1.2001 filed in this Court on behalf of the

plaintiff-appellant setting out the substantial questions of

law which in his submission arose in the case and on which

the High Court ought to have heard the appeal.

What is a substantial question of law involved in the

case? Section 100 of the Code of Civil Procedure, 1908

(hereinafter, the code, for short) as substituted by the

Code of Civil Procedure Amendment Act, 1976 (104 of 1976)

w.e.f. 1.2.1977 reads as under:-

100. Second Appeal.