Yogendra Thakur & Ors v. Narendra Thakur & Ors

This second appeal has been filed by the defendants appellants appellants against the judgment and decree dated

26.9.2011 passed by the learned Additional District & Sessions Judge, Fast Track Court – III, Siwan in Title Appeal No. 55 of 2009 whereby the lower appellate court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated

27.8.2009 passed by the learned 2nd Munsif, Siwan in Title Suit No. 217 of 2000. The plaintiffs respondents filed the aforesaid suit praying for declaration of title and recovery of possession with respect to the suit property measuring 15 dhurs of plot No. 1255 Patna High Court SA No.656 of 2011 (4) dt.23-07-2013 2 alleging that they have obtained settlement from the ex-landlord in the year 1939 and after vesting register-II has been opened in the name of plaintiffs and they were in possession of the same. In the year 1999 the defendants encroached upon the suit property and constructed stairs and put Nad and Khuta on it. The defendants filed written statement alleging that in fact they are the owner of 19 dhurs which they have got settled from the ex-landlord in the year 1932 and they are in possession of the property. They denied the case of the plaintiffs regarding settlement and possession. The defendants also claimed title by adverse possession. On the basis of the evidences and materials available on record, the trial court recorded the finding that the plaintiffs have been able to prove their title and further that the defendants failed to prove their case of settlement. The trial court also recorded the finding that the defendants failed to prove their adverse possession also. Accordingly, decreed the plaintiffs’ suit. On appeal, the lower appellate court confirmed the judgment decree of the trial court and dismissed the appeal. The learned counsel Mr. V.K. Singh appearing on behalf of the appellants raised two grounds. Firstly, he submitted while decreeing the plaintiffs’ suit the courts below did not Patna High Court SA No.656 of 2011 (4) dt.23-07-2013 3 consider the fact that the defendants are claiming title on 19 dhurs of plot No. 1255 whereas the plaintiffs have filed the suit for declaration of title and recovery of possession with respect to only 15 dhurs. Therefore, there is no dispute regarding 4 dhurs but without considering this aspect of the matter and without appointing pleader commissioner for measurement of the land at the spot decreed the plaintiffs’ suit. Secondly, the learned counsel submitted that the plaintiffs prayed for recovery of possession therefore, the courts below were required to give finding as to when the defendants dispossessed the plaintiffs from the suit land but none of the courts below either framed such issue or recorded any such finding, therefore, the judgments of the both courts blow are vitiated. On the other hand, the learned counsel appearing on behalf of the respondents submitted that in this case both the courts below have considered the points raised by the learned counsel for the appellants and have recorded the finding that the plaintiffs have been able to prove their title on the basis of settlement and the defendants failed to prove their title and in the suit for declaration of title and recovery of possession, the plaintiffs are required to prove title only. So far non-framing of issue is concerned, the learned counsel submitted that the case of Patna High Court SA No.656 of 2011 (4) dt.23-07-2013 4 the plaintiffs is that the defendants encroached the suit property which has been found to be true, therefore, the judgment of both the courts below cannot be interfered with in second appellate jurisdiction. From perusal of the judgment of the lower appellate court it appears that the lower appellate court has considered the documentary evidences and the oral evidences and has recorded the finding that the plaintiffs have filed rent receipts of the ex- landlord, the register-II which has been opened in the name of the plaintiffs and the rent receipts granted by the State of Bihar after vesting. It appears that the pleader commissioner was appointed for giving report regarding the construction made by the defendants and according to the pleader commissioner report (Ext.8) the evidence of the pleader commissioner, the lower appellate court recorded the finding that in fact the stairs have been constructed only 2 ½ years ago and according to the plaintiffs the period of dispossession is according to the report of the pleader commissioner, lower appellate court also considered that only Ext.-A was produced by the plaintiffs in support of their title and possession. On the basis of these finding, the lower appellate court concluded that the plaintiffs have been able to prove their title over the suit plot No. 1255 and at the same time Patna High Court SA No.656 of 2011 (4) dt.23-07-2013 5 the lower appellate court also recorded the finding that the defendants failed to prove their title on the suit land. So for the submission of the learned counsel that the plaintiffs have prayed for recovery of possession of only 15 dhurs is concerned, it may be mentioned here that the plaintiffs claimed ownership over the entire land measuring 2 kattha 8 dhurs of plot No. 1255 and according to the plaintiffs the defendants have encroached only 15 dhurs from the said plot. On the contrary, the case of the defendants is that they have been settled 19 dhurs. When the courts below recorded the finding that the defendants failed to prove their title over 19 dhurs and admitted that they are in possession of the suit property there is no question of appointment of pleader commissioner arises. The dispute is with regard to the property comprised in plot No. 1255. It is not the case of the defendants that he is in possession on 4 dhurs of the land which is not comprised within plot No. 1255. Therefore, the dispute between the plaintiffs and defendants is with respect to the right, title and possession over plot No. 1255. Therefore, the submission of the learned counsel for the appellants that no issue was framed regarding the date of dispossession, it may be mentioned here that the Hon’ble Supreme Court in the case of Bhavnagar Municipality vs. Union of India and Patna High Court SA No.656 of 2011 (4) dt.23-07-2013 6 another AIR 1990 SC 717 has held that in the case of declaration of title coupled with recovery of possession of the property the plaintiffs are required to prove their title only. If the plaintiffs prove their title then according to Article 65 of the Limitation Act the defendants are required to prove their adverse possession. Here both the courts below on the basis of the materials recorded the finding that the defendants failed to prove adverse possession. It is also settled principles of law that finding on the question of adverse possession is a pure question of fact. Now, therefore, when the plaintiffs proved their title and defendants failed to prove their adverse possession, in my opinion, the date of dispossession or month of dispossession is immaterial because the plaintiffs have prayed for recovery of possession of the suit property. Therefore, in my opinion, the points raised by the learned counsel for the appellants are not at all substantial questions of law involved in this second appeal for decision. Therefore, I find that no substantial question of law is involved in this second appeal and thus, this second appeal is dismissed at the stage of admission itself. S.S./- (Mungeshwar Sahoo, J)