Jharkhand High Court
Ashok Kumar Lohia @ Ashok Lohia vs Sharda Devi Modi on 15 July, 2025
2025:JHHC:19204
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 27 of 2024
1.
Ashok Kumar Lohia @ Ashok Lohia, aged about 66 years, son of
Late Om Prakash Lohia, Resident of Balkishan Sahay Road,
Opposite Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali,
District Ranchi (Jharkhand).
2. Deepak Kumar Lohia @ Deepak Lohia, aged about 60 years, son of
Late Om Prakash Lohia, Resident of Balkishan Sahay Road,
Opposite Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali,
District- Ranchi (Jharkhand).
3. Nisha Jalan @ Kiran Jalan, aged about 62 years, daughter of Late
Om Prakash Lohia, Resident of Balkishan Sahay Road, Opposite
Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali, District
Ranchi (Jharkhand).
4. Sangita Poddar, aged about 58 years, daughter of Late Om Prakash
Lohia, Resident of Balkishan Sahay Road, Opposite Jaipal Singh
Stadium (West), P.O. G.P.O., P.S. Kotwali, District Ranchi
(Jharkhand).
... Petitioners/Defendants
Versus
Sharda Devi Modi, aged about 84 years, wife of Late Om Prakash
Modi, resident of Jayshree House', Gandhi Chowk, Upper Bazar,
P.O. GPO, P.S. Kotwali, District Ranchi (Jharkhand).
... Opp. Party/Plaintiff
Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
For the Petitioners : Mr. Indrajit Sinha, Adv.
Mr. Vipul Poddar, Adv.
Ms. Sugandha Jaiswal Poddar, Adv.
For the Opp. Party : Mr. Shresth Gautam, Adv.
Order No.14/Dated- 15.07.2025
1. Heard Mr. Indrajit Sinha, learned counsel for the petitioners as
well as Mr. Shresth Gautam, learned counsel for the opposite party.
2. The instant civil revision has been filed by the petitioners
challenging the validity of order dated 28.05.2024 (hereinafter
referred as 'impugned order') passed in Miscellaneous Civil
Application No.788 of 2023 (arising out of Original Suit No.59 of
2023) by learned Civil Judge (Senior Division-I), Ranchi, whereby
and whereunder the application dated 03.07.2023 (Annex.2) filed
Page | 1
2025:JHHC:19204
by the petitioners under Order VII Rule 11(d) of the Code of Civil
Procedure has been rejected.
3. Factual matrix giving rise to this revision is that opposite
party Smt. Sharda Devi Modi filed the Original Suit Case No.59 of
2023 before the learned Trial Court stating inter alia that after
family partition, the suit property came into share of one Smt.
Madhulata Devi vide partition deed No.7326 dated 26.05.1971.
The said Madhulata Devi vide sale deed No.5974 dated 31.03.1975
sold out the Schedule 'A' property being part of M.S. Plot No.1304
to the plaintiff/opposite party. After mutation in the revenue
records, vide Mutation Case no.1254 of 1983-84, she is paying rent
to the State Government regularly in respect of Schedule 'A'
property. Thereafter, in the year 1984, the plaintiff also got her
name mutated in Ranchi Municipal Corporation and got Holding
No.1194/B1, present corresponding No.0220000629000A2. The
plaintiff did not raise any boundary wall over her purchased land
and in the meantime, she along with her family members shifted
to Bombay now Mumbai for their livelihood. It is further alleged
that adjacent to the land of the plaintiff measuring an area 5
Kathas 2 Chhatak and 23 Sq.ft. land was sold by the vendor of
plaintiff namely Smt. Madhulata Devi through registered sale
deed No.2240 of 1974 to the mother of the defendants, namely,
Smt. Sharda Devi Lohia. Thereafter, the defendants sometimes in
the year 1975 constructed a house and also raised boundary wall
over their purchased land. It is further alleged that in the year
2006, the plaintiff along with her family members returned from
Mumbai to Ranchi at their ancestral residence known as "Jayshree
House'' Gandhi Chowk, Upper Bazaar, Ranchi. Thereafter,
plaintiff's sons constructed a small office measuring 330 Sq.ft. at
South-Eastern side of Schedule 'A' property and also got electric
Page | 2
2025:JHHC:19204
connection, water connection therein and got reassessment of
Holding Tax for their new construction in 2007-08. It is further
alleged that recently the plaintiff wanted to develop the said
Schedule 'A' property into a multistoried residential-cum-
commercial building, hence, she requested the Architect to
prepare a building plan. Accordingly, on 28.08.2022, the Architect
measured the land for preparation of building plan and found that
Northern side of plaintiff's land was encroached by the defendants
by raising boundary wall and after measurement, it was found
that the total encroached area by defendants is 98 ft. 6 inch x 4 ft.
equivalent to 8 Chhatak and 34 Sq.ft. more fully described in
Schedule 'B' shown in Red Wash in the Map attached to the plaint.
Thereafter, the plaintiff confronted the defendants and enquired
about the encroachment and it was disclosed by the defendants
No.1 and 2 that they have obtained unregistered transfer paper in
respect of the above excess land executed by uncle of the plaintiff's
father-in-law. The plaintiff, for the first time, came to know about
the said encroachment of her land by the defendants on
28.08.2022. The defendants decline to vacate the encroached area
in favour of the plaintiff who is rightful owner of the same and
entitled for possession thereof, therefore, the suit was instituted
claiming relief for declaration of right title and interest of the
plaintiff over the suit Schedule 'B' property the land along with
recovery of possession of the same. The plaintiff has also asked for
perpetual injunction and other reliefs as Court deems fit along
with cost.
4. The petitioners/defendants appeared and filed their written
statement and separately, an application under Order VII Rule 11
of the C.P.C. registered as Miscellaneous Case No.788 of 2023 with
specific averment that the suit of the plaintiff for possession of
Page | 3
2025:JHHC:19204
immovable property or any interest thereon based on her title is
governed by the limitation as prescribed in Article 65 appended to
Schedule 1 of the Indian Limitation Act, 1963 which is 12 years
from the date when the possession of the defendants becomes
adverse to the plaintiff. It is further stated that from bare perusal
of plaint it appears that the plaintiff has purchased the portion of
land after the defendants and within knowledge of the plaintiff,
the boundary wall was raised in the year 1975 itself. The plaintiff
returned in the year 2006 from Bombay but no objection was
raised and even in the year 2007-08, the plaintiff constructed office
for her son over area 330 Sq.ft. and got reassessment of Holding
Tax without raising any objection about any encroachment of her
land. The plaintiff has instituted a hopelessly time barred suit after
lapse of 49 years from the date of purchase and cleverly drafted
the suit on the ground of knowledge of encroachment on
28.08.2022. The plaintiff has manipulated a false cause of action in
order to bring the suit within the period of limitation. Therefore,
impugned order passed by the learned Trial Court rejecting the
application of the defendants is based on non-consideration and
the learned Trial Court has considered upon only to the point that
question of limitation herein is mixed question of law and facts,
hence, suit cannot be dismissed only on account of bar of
limitation. The basic principles of law have been ignored by the
learned Trial Court. The learned Trial Court has failed to consider
the averments of plaint in its entirety indicating substantial
admissions of the plaintiff that she was all along having
knowledge about the construction of boundary wall and
possession of the defendants over the suit Schedule 'B' property
but kept mum. He has also placed reliance upon reported
judgment in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)
Page | 4
2025:JHHC:19204
through Legal Representatives and Ors., (2020) 7 SCC 366,
wherein it has been held that ''if, however, by clever drafting of
the plaint, it has created the illusion of a cause of action then it
should be nipped in the bud, so that bogus litigation will end at
the earliest stage. The Court must be vigilant against any
camouflage or suppression, and determine whether the litigation
is utterly vexatious, and an abuse of the process of the court.''
5. On the other hand, learned counsel for the opposite
party/plaintiff vehemently opposed the aforesaid contentions
raised on behalf of petitioners and submitted that the suit of the
plaintiff is filed under Article 65 of the Limitation Act which is
also admitted by the defendants for which there is limitation of 12
years commencing from the date when the possession becomes
adverse to the plaintiff. Therefore, in the instant suit title of the
plaintiff has not been denied by the defendants which has been
acquired from registered sale deed through the same vendor from
whom the defendants have also purchased the portion of suit
property. The defendants can also claim the area which was
purchased and mentioned in their registered sale deed and
admittedly, the excess area they have encroached which has been
described in Schedule 'B' to the plaint. The plaintiff has no
knowledge about the such encroachment prior to 28.08.2022. This
is not subject matter of any cleverly drafting of the plaint. The
petitioners/defendants are, therefore, bound to prove their
adverse possession for negating the title of the plaintiff over the
suit Schedule 'B' land which cannot be decided without full
fledged trial of the case. Therefore, there is no illegality or
infirmity in the impugned order calling for any interference by
way of this revision which is devoid of merit and fit to be
dismissed.
Page | 5
2025:JHHC:19204
6. Before imparting my verdict on the rival contentions of the
respective parties, it is apposite to extract the provision of Article
65 appended to Schedule 1 of the Indian Limitation Act.
Description of suit Period of Time from
limitation which period
begins to run
65. For possession of immovable Twelve When the
property or any interest therein based Years possession of
on title. the defendant
Explanation.--For the purposes of becomes
this article-- adverse to the
(a) where the suit is by a plaintiff.
remainderman, a reversioner (other
than a landlord) or a devisee, the
possession of the defendant shall be
deemed to become adverse only when
the estate of the remainderman,
reversioner or devisee, as the case
may be, falls into possession;
(b) where the suit is by a Hindu or
Muslim entitled to the possession of
immovable property on the death of a
Hindu or Muslim female, the
possession of the defendant shall be
deemed to become adverse only when
the female dies;
(c) where the suit is by a purchaser at
a sale in execution of a decree when
the judgment debtor was out of
possession at the date of the sale, the
purchaser shall be deemed to be a
representative of the judgment-debtor
who was out of possession.
7. A bare perusal of the above provision, it is crystal clear that
in a suit for possession, based on title, the defendants can only
prevent the plaintiff from recovering possession if they can prove
that they have been in adverse possession for a continuous period
of 12 years. If the defendants do not plead or prove adverse
possession, the plaintiff's claim for possession cannot be barred by
limitation. It is well settled principle of law that when the plaintiff
establishes title to the property (in this case title of the plaintiff not
Page | 6
2025:JHHC:19204
disputed), he cannot be non-suited on the ground of limitation
unless the defendant proves the adverse possession.
8. In view of aforesaid discussion, in the instant case, it is quite
obvious that plaintiff's suit for recovery of possession is based on
title for which limitation period is provided 12 years unless the
possession of defendants becomes adverse to plaintiff. Therefore,
the burden of proof of adverse possession on the shoulder of
defendant and the suit cannot be dismissed exercising the powers
under Order VII Rule 11(d) of the C.P.C at this preliminary stage
of the proceeding.
9. I have given anxious consideration to the overall scenario of
this case along with impugned order and find no illegality or
infirmity in the impugned order calling for any interference.
Therefore, this civil revision stands dismissed.
10. Pending I.As., if any, also stand dismissed.
(Pradeep Kumar Srivastava, J.)
Sachin
Page | 7
