Ram Ji Jaiswal vs Rajeshwar Prasad And Ors.
2023 Latest Caselaw 21730 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:54380
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 231 of 2019
 

 
Appellant :- Ram Ji Jaiswal
 
Respondent :- Rajeshwar Prasad And Ors.
 
Counsel for Appellant :- Suresh Kumar Upadhyay,Rajendra Pratap Singh,Satyendra Kumar Tiwari,Shiv Shankar Singh,Sushil Kumar Singh
 
Counsel for Respondent :- Mahendra Kumar
 

 
					Alongwith
 
Case :- SECOND APPEAL No. - 232 of 2019
 

 
Appellant :- Ram Ji Jaiswal
 
Respondent :- Rajeshwar Prasad And Ors.
 
Counsel for Appellant :- Suresh Kumar Upadhyay,Rajendra Pratap Singh,Satyendra Kumar Tiwari,Shiv Shankar Singh,Sushil Kumar Singh
 
Counsel for Respondent :- Mahendra Kumar
 

 
Hon'ble Jaspreet Singh, J.

1. Heard Shri Shiv Shankar Singh, learned counsel for the appellant and Shri Mahendra Kumar, learned counsel appearing for all the respondents.

2. This is a batch of two second appeals filed by the defendant-appellant.

3. In order to appreciate the controversy involved in the instant two second appeals, it will be necessary to take a glance at few relevant facts. A suit for permanent injunction was filed by Ram Ji Jaiswal the present appellant against Mahadev, Phool Chand and Ganesh Prasad stating therein that he was the tenant of the premises in question on monthly rent of Rs.100/- since 1982. It was further pleaded that the defendants on 12.12.1987 made an illegal attempt to disturb the possession of the plaintiffs, accordingly a suit for permanent injunction was filed on 14.12.1987 before the Munsif South Sultanpur which came to be registered as Regular Suit No.930 of 1987.

4. The said suit came to be contested by the owners-respondents pleadings therein that the appellant was the brother-in-law (Sala) of Ganesh Prasad Jaiswal and that he was neither the tenant and rather he had forcibly occupied the premises and as such the tenancy was denied.

5. The respondents who were the owners of the premises instituted another suit seeking possession/eviction of the appellant from the property in question. Thus, there were two suits, one filed by the present appellant bearing No.930 of 1987 and the other was filed by the respondent-owners bearing No.155 of 1994. Both the suits were consolidated and were decided by a common judgment and decree dated 21.09.2004 by the Additional Civil Judge (Junior Division, Sultanpur as a result the suit filed by the appellant bearing No.930 of 1987 was dismissed and the suit filed by the respondents bearing No.155 of 1994 came to be decreed. A direction was issued to the appellant to vacate the premises within a period of three months and also pay a sum of Rs.36,000/- towards damages for wrongful use and occupation.

6. This judgment and decree dated 21.09.2004 came to be assailed by filing two Regular Civil Appeals bearing Nos.61 of 2004 and 62 of 2004. Both appears were consolidated by the Additional District Judge, Court No.4, Sultanpur and by means of judgment and decree dated 29.05.2019, the appeals were dismissed and the judgment passed by the trial court was affirmed.

7. Ram Ji Jaiswal the present appellant being aggrieved has further knocked the doors of this Court by means of filing these two second appeals bearing Nos.231 and 232 of 2019 which are listed today for admission.

8. Shri Shiv Shankar Singh, learned counsel for the appellant while pressing his two appeals has raised two questions of law upon which the appeal as per the learned counsel for the appellant deserves to be admitted.

9. It is primarily urged that the suit filed by the respondents was not maintainable; inasmuch as it was barred by limitation and in terms of Section 3 of the Limitation Act it was incumbent upon the Court to have considered this aspect even though no defence to the aforesaid effect is taken but in the instant case the limitation has not been properly considered.

10. Learned counsel for the appellant has further submitted that apparently on the perusal of Article 51 as contained in the schedule appended to the Limitation Act 1963 if at all the suit was to be filed, it had to be within three year commencing from 1982 i.e. the time when the defendant i.e. the appellant before this Court, had claimed his tenancy rights. It was not open for the respondent to have instituted the suit in the year 1994 and as such the suit was ex-facie barred by limitation, consequently this aspect has not been appropriately considered by the two courts which gives rise to a substantial question of law.

11. Shri Singh while taking his submissions forward has also raised another question that the lower appellate court has violated the mandate of Order 41 Rule 31 CPC; inasmuch as points for determination have not been framed. The lower appellate court has exercised his valuable jurisdiction under Section 96 CPC in a very casual manner and have affirmed the findings which is not the appropriate manner in which the lower appellate court ought to have exercised the jurisdiction, consequently the appeal deserves to be admitted.

12. Shri Mahendra Kumar, learned counsel appearing for the caveator-respondents was completely at loss of wards to assist the Court.

13. Having heard the learned counsel for the appellant, this Court finds that the reliance placed by the learned counsel for the appellant on Article 51 as appended to the Limitation Act 1963 is completely misplaced. From the bare perusal of Article 51 which reads as under:-

51.

For the profits of immovable

property belonging to the plaintiff which have been wrongfully received by the defendant.

Three years

When the profits are received.

14. It would indicate that it has only a very limited applicability and is in respect of mense profits and certain other benefits for which a three years period has been provided.

15. Apparently, the suit filed by the respondent was for eviction, in case if the appellant who admits himself to be a tenant then the question is that a suit for eviction could be filed within 12 years after the tenancy is determined as provided in Article 67 of the Limitation Act.

16. On the other hand, in case if the contention of the respondent is taken note of, it would indicate that he denies the tenancy and he clearly states that the appellant is in wrongful occupation. In this view of the matter, since the defendant had instituted the suit on the basis of his title then the limitation for such a suit would be governed by Articles 64 and 65 of the Limitation Act. In the instant case, the suit was for possession was on the basis of title, it is covered by Section 5, a Specific Relief Act and the limitation would be 12 years. Either way Article 51 of the Limitation Act has no applicability rather Articles 64 and 67 were applicable and both provides limitation of 12 years and in that case if the year 1987 is taken when the suit was filed by the appellant even then the period of 12 years would go over the year 1999 while the suit filed by the respondent was of the year 1994. Thus, the first contention as raised by the learned counsel for the appellant fails and has no legs to stand.

17. In so far as the second issue regarding non-formulation of points for determination is concerned, this Court finds that even this contention does not impress the Court for the reason that from the perusal of the decision rendered by the lower appellate court, it would indicate that in paragraph-9, it has clearly crystallized the issue of limitation which was involved and pressed before the lower appellate court. It is considering the aforesaid that the lower appellate court has affirmed the judgment and decree passed by the trial court by affirming the findings of the trial curt which are well reasoned.

18. Regarding non-formulation of points for determination this issue was considered by this Court in Dalla vs. Nanhu, reported in 2019 (1) ADJ Page 246 and in Gutta Devi Vs. Jai Nath in MANU/UP/0585/2019 such as which has been affirmed by the Apex Court in Gutta Devi Vs. Jai Nath MANU/SCOR/48230/2023. Thus in light of the above, the learned counsel for the appellant could not demonstrate any prejudice and how the judgment of the lower appellate court falls foul of Order 41 Rule 31 CPC.

19. Having regard to the submissions made and from the perusal of the material which is available on record, this Court finds that the appeals are concluded by concurrent findings of fact and involves no substantial question of law, accordingly the appeals are dismissed. The judgment and decree passed by the two courts dated 21.09.2004 and 29.05.2019 are affirmed. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 11th August, 2023

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