Patna High Court
Shree Kishun Rai vs Pan Kuwar on 22 December, 2023
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.402 of 2000
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1. Shree Kishun Rai Son of Late Sita Ram Rai Resident of Village- Semaria
Bijay Rai Ke Tola Pokhari, Post Office and Police Station- Revilganj,
District- Saran.
2. Butan Rai, Son of Late Sita Ram Rai Resident of Village- Semaria Bijay Rai
Ke Tola Pokhari, Post Office and Police Station- Revilganj, District- Saran.
3. Dalmati Devi alias Lalmati Devi alias Lalmuni Devi, Wife of Satya Narayan
Rai Resident of Village- Semaria Bijay Rai Ke Tola Pokhari, Post Office and
Police Station- Revilganj, District- Saran.
... ... Appellant/s
Versus
1.1. Ram Dulari Devi @ Dulari Devi Wife of Jugal Rai Resident of Village-
Patiya, Bijay Rai Ka Tola, P.O. and P.S.- Revilganj, District- Saran.
1.2. Raj Kumar Rai S/o Jugal Rai Resident of Village- Patiya, Bijay Rai Ka Tola,
P.O. and P.S.- Revilganj, District- Saran.
2. Jugal Rai alias Jugeshwar Rai, Son of Deoraj Rai (deceased), Resident of
Village- Semaria Bijay Rai Ke Tola Pokhari, Post Office and Police Station-
Revilganj, Pergana Manjhi, District- Saran.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Binod Kumar Singh, Advocate
Mr. Bipin Kumar, Adv.ocate
For the Respondent/s : Mr. Mahesh Narayan Parbat, Sr. Advocate
Mr. Ved Prakash Srivastava, Advocate
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 22-12-2023
This Second Appeal has been filed against the judgment
and Decree dated 25-07-2000, passed by the learned 1st
Additional District Judge, Saran, in Title Appeal No. 43 of 1988,
whereby the learned lower appellate Court has reversed the
judgment and decree dated 29-02-1988 passed in Title Suit No.
12 of 1984.
Patna High Court SA No.402 of 2000 dt.22-12-2023
2/25
2. The case of the plaintiffs-appellants in short is that
one Lalit Bhagat Rai had five sons, viz., Ram Dahin Rai, Badri
Rai, Ram Autar Rai, Ramratan Rai and Deoraj Rai, who was
father of the husband of the original plaintiff viz., Pan Kuer,
who had acquired some lands from his own income. During the
lifetime of Lalit Bhagat Rai, Deoraj Rai died in the year 1959,
leaving behind his widow, namely, Pan Kuer (plaintiff) and a
son Jugal Rai (defendant No.1). In the life time of said Lalit
Bhagat Rai, when the Deoraj Rai was alive, the said Lalit
Bhagat Rai partitioned the property, which was acquired by him
by way of family arrangement. All sons got 1/5th share and had
started residing separately. The plaintiff is the widow of Deoraj
Rai and mother of Defendant No. 1. Defendant Nos. 2 and 3 are
the alleged vendees of Defendant No. 1. The further case of the
plaintiff is that Deoraj Rai, husband of the original plaintiff, was
in police service and he died in the year 1959, leaving behind
plaintiff and his minor son, viz., Jugal Rai, (defendant no.1) and
after the death of husband, the plaintiff became the 'karta' of
her family and looked after her son (defendant no.1) and carried
business in the name of her husband and constructed a 'Pucca'
house. In the year 1965, Defendant No.1 joined the army
service, but he never sent a single farthing to the plaintiff,
Patna High Court SA No.402 of 2000 dt.22-12-2023
3/25
during the course of his service. The further case of the plaintiff
is that she got marriage of his son solemnized with one
Lilawati Devi. But, her son had become addicted to ganja,
bhang and wine etc., and became a man of bad character, and he
was not taking care of plaintiff and was issueless and due to
his bad habits, his wife Lilawati deserted him and solemnized
another marriage. He was dismissed from his service in the year
1972. It has further been stated that Lalit Bhagat Rai had
acquired 01 Bigha 14 dhurs of land appertaining to Khata No.
376, Plot No. 700 in Mauza -Semaria, by registered sale deed
dated 23-12-1948. During the life time of Lalit Bhagat Rai, this
land was also partitioned amongst the sons of Lalit Bhagat Rai
by metes and bounds, out of which the plaintiff got 1/5th share
of her husband (deceased), namely, Deoraj Rai and, accordingly,
she has been in possession of the same. Further case of the
plaintiff is that on 25-01-1984, while the plaintiff was working
in her field, she was objected by Defendant Nos. 2 and 3,
because her son Jugal Rai had executed a sale deed on
30-12-1974
, regarding suit land in favour of the Defendant Nos.
2 and 3. Having got knowledge about the same, the plaintiff
inquired the matter from her son Jugal Rai, who denied the same
and, on inquiry, from Registry Office, she became aware that a
Patna High Court SA No.402 of 2000 dt.22-12-2023
sale deed was executed, which was forged and fabricated one in
the manner as described in the plaint. It is further pleaded that
the sale deed dated 30-12-1974 was not executed by Jugal Rai
and the scribe, identifying witness and other witnesses, are men
of the camp of Defendant Nos. 2 and 3. The further case of the
plaintiff is that Jugal Rai was never in need of Rs. 3,000/- for
repair of his house and for purchasing buffalo. The plaintiff
herself constructed the house by money given by her husband
and she maintained the family by cultivating her lands and
selling milk.
3. It has been pleaded that Jugal Rai was impersonated by
somebody else for admitting the execution of his sale deed and
not a single farthing was paid to him and the thumb impression,
on the alleged sale deed, is false and fabricated. The defendants
never came in possession over the suit land nor any title accrued
to them on the basis of the said sale deed. No consideration
money was paid to Defendant no.1. It has further been
contended that several times the plaintiff requested the
defendants to execute deed of Ladavi in her favour regarding the
suit properties, but the defendants never agreed to the same.
Lastly, the plaintiff requested to the defendants on 28-02-1984,
to which they did not agree, hence the necessity of the suit.
Patna High Court SA No.402 of 2000 dt.22-12-2023
4. On the basis of aforesaid facts, plaintiff has prayed for
setting aside the sale deed dated 30-12-1974 executed by
Defendant No.1, in favour of Defendant Nos. 2 and 3 and, for
confirmation /recovery of possession over the land in Suit.
5. On Summons, Defendant Nos. 2 and 3 have appeared
and filed joint written statement. Apart from technical objection,
the factum of partition amongst the sons of Lalit Bhagat Rai and
the plaintiff is the wife of Deoraj Rai, have been admitted by
these defendants. These defendants have denied the fact that
after the death of Deoraj Rai the plaintiff became the Karta of
the family and looked after the affairs of the family and carried
business of buffalo by the money received from her husband
Deoraj Rai and she constructed house, rather Defendant No.1
became the Karta of the family, after the death of his father
Deoraj Rai and in the capacity of Karta of the family, he looked
after the family affairs and his mother. It is further submitted
that the Defendant No.1 was neither characterless nor his wife
left him nor he was addicted to ganja, bhang and wine
etc.,.They have denied the fact of dismissal from service of
Defendant No.1. It is contended that they have asserted that the
Defendant no.1 became karta of the family. The plaintiff never
worked in the field nor carried any business of buffalo. They
Patna High Court SA No.402 of 2000 dt.22-12-2023
have denied the possession of the plaintiff over the suit land.
Further denied that the plaintiff, for the first time, came to know
on 25-01-1984 about the sale deed in- question and it has also
been denied by these defendants that she called her brother and
enquired from the Registration Office rather, according to these
defendants, the plaintiff had knowledge of the sale deed from
very beginning and defendant no. 1 had executed the sale deed
as the karta of the family in favour of these defendants to the
knowledge and with the consent of his mother (the plaintiff) for
legal necessity and these defendants have been coming in
possession as vendees of the land since the date of execution of
the sale deed. Defendant No.1 was in need of Rs. 3000/- for
repairing of his house and for purchasing buffalo. They have
denied the fact that the plaintiff has purchased the buffalo from
her own money. It is further contended that the buffalo was
purchased from the consideration money of the sale deed in-
question. The defendants have further contended that Rs. 400/-
was paid to Defendant no.1 before execution of the sale deed
and the rest Rs. 2600/- was paid at the time of exchange of
Registration receipt. Further case of the defendants is that
defendants fell in need of money for repairing of house etc., and
for this they executed a sale deed in favour of plaintifff, in
Patna High Court SA No.402 of 2000 dt.22-12-2023
which, it was agreed that the consideration money would be paid
at the time of exchange of the Registration receipt and at that
time, she will get possession over the land, but as the plaintiff
did not pay the consideration money of the sale deed, these
defendants themselves withdrew the sale deed from the
Registration office and even when, the plaintiff did not pay the
consideration money, on demand, then these defendants got the
sale deed cancelled. Lastly, it has been contended that the
defendants are in possession of the suit land on the basis of sale
deed dated 30-12-1974.
6. However, it is pertinent to mention that despite the
summons, Jugal Rai (Defendant No.1) has not appeared in the
Suit nor filed any written statement.
7. On analyzing the evidence and materials on record, the
learned trial Court has held that the plaintiff was dealing with
the family affairs in the capacity of 'Karta' at the time of
execution of the sale-deed in question. The sale deed dated 30-
12-1974 executed by Jugal Rai (Defendant No.1) was in favour
of Murti Devi ( Defendant No.2 only) and not in favour of Sita
Ram Rai ( Defendant No.3), who was husband of Defendant No.
2 (Exhibit-B). The learned Trial Court has further held that
plaintiff has not disclosed in the plaint about the date of
Patna High Court SA No.402 of 2000 dt.22-12-2023
dispossession which has not been corroborated by any material
evidence. Thus, the relief for recovery of possession is also not
sustainable. The learned Trial Court has further held that the
suit stands barred under the provisions of the Limitation Act. So
far sale- deed dated 30-12-1974 is concerned, the plaintiff got
knowledge on 25-01-1984 is not correct, rather it appears from
the plaintiff's own admission, in her evidence, that she had
knowledge of the sale deed just after one year of its execution.
Therefore, the plaintiff has got no valid cause of action of the
suit. Therefore, the plaintiff is not entitled to any relief in the
suit. Accordingly, the Suit was dismissed.
8. Being aggrieved, the plaintiff preferred Title Appeal
No. 43 of 1988 against the judgment and decree passed by the
learned Trial Court on 29-02-1988. After hearing the parties, the
learned lower Appellate Court allowed Title Appeal and set
aside the judgment and decree, and decreed the Suit in favour of
the plaintiff.
9. Against the said judgment and decree, the heirs of
defendant Nos. 2 and 3 have filed the present Second Appeal,
which was admitted on 21-04-2009, the following substantial
question of law was framed, which are as follows:-
1) Whether the court of appeal below while
reversing the judgment and decree of the trial court
Patna High Court SA No.402 of 2000 dt.22-12-2023
was justified in decreeing the suit by mis-
interpretation of law of adverse possession under
the provision of Limitation Act?
2) Whether the learned trial court having dismissed
the suit on the ground of limitation only, the
learned court of appeal below was justified in
decreeing the claim only by reversing the judgment
and decree of the trial court with regard to
limitation and adverse possession without going
into the other points and issues involved in the
case?
10. The learned counsel for the appellants submits that the
learned appellate court has failed to consider that the suit for the
relief of declaring that the registered sale deed 30-12-1974,
executed by Jugal Rai in favour of Murti Devi, is forged,
fabricated and baseless. The plaintiff sought further reliefs that
defendants have got no title over the suit land on the basis of
registered sale deed dated 30-12-1974. The plaintiff did not
pray for declaration of title or confirmation of possession over
the suit land, as the plaintiff has averred that she is in
possession over the suit land. Later on, she amended her plaint
by order dated 23-02-1988 by adding another relief 1 (ka) in the
plaint for confirmation of possession and, alternatively, if she
found dispossessed then recovery of possession. No relief of
declaration of her title over the suit property was claimed by her
Patna High Court SA No.402 of 2000 dt.22-12-2023
even by way of amendment and, no ad valorem court fee was
paid for such relief. The learned counsel for the appellants
further submits that from perusal of the original unamended
plaint, it is manifest that suit was filed only for declaring the sale
deed dated 31-12-1974, executed by Jugal Rai in favour of
Murti Devi, is forged, fabricated, baseless and inoperative and
on the basis of the said sale deed, the defendants have got no
title over the suit property without seeking relief of declaration
of title and confirmation of possession or any other
consequential relief in the suit. In the aforesaid facts, the Suit
was fully covered under Articles 56 or 58 of the Limitation Act,
1963 ( for brevity Act, 1963). So far relief of confirmation of
possession/ recovery of possession sought on 23-02-1988, which
was allowed by order dated 23-02-1988, the original plaintiff did
not claim a relief of declaration of her title with respect to the
suit land. Furthermore, the suit was decided on 29-02-1988 i.e.,
immediately, after the amendment. But originally, the suit was
filed only for declaring the said sale deed to be forged,
fabricated, baseless and inoperative and defendants have no title
over the suit land and cost of the suit, which was barred, in
view of Article 56 of the Act of 1963, as the period is only
three years even if Article 58 of the Act of 1963, provides that
Patna High Court SA No.402 of 2000 dt.22-12-2023
period is three years, the Court has wrongly applied Article 65
of the Act of 1963, which does not apply, because no relief of
declaration of title was sought by the plaintiff. If the main relief
of declaration of title is not sought then the consequential relief
of either confirmation or recovery of possession, cannot be
granted. The plaintiff, in her deposition, at paragraph 9 of her
cross- examination, has admitted that she got knowledge about
the registration of impugned sale deed within one year and
thereby she came to know about the registered sale deed by
December, 1975. Therefore, the suit is clearly barred by the
law of Limitation in the year 1984. The learned Trial Court has
rightly gave the findings that the Suit is barred by law of
limitation. Reliance in this regard has been placed in the case of
Ahmedsaheb (Dead) by Lrs. & Ors. V. Syed Ismail reported in
(2012) 8 SCC 516 wherein the Hon'ble Apex Court held that
"it is needless to emphasize that admission of a party in the
proceedings either in the pleadings or oral is the best evidence
and the same does not need any further corroboration".
Reliance has also been placed in the case of Thiru John V.
The Returning Officer & Ors. reported in AIR 1977 (SC) 1724.
The Hon'ble Apex Court in paragraph No. 15 of the judgment
has held as follows :
Patna High Court SA No.402 of 2000 dt.22-12-2023
"It is well settled that a party's admission as
defined in Secs 17 to 20 fulfilling the requirement
of Section 21. Evidence Act, is substantive evidence
proprio vigore. An admission.
If clearly and unequivocally made, is the best
evidence against the party making it and though
not conclusive, shifts the onus on to the maker on
the principle that " what a party himself admits to
be true may reasonably be presumed to be so and
until the presumption was rebutted the fact
admitted must be taken to be established".
11. The learned counsel for the appellants further submits
that the learned appellate court has wrongly held that the
plaintiff is entitled to recovery of possession and reversed the
findings of the learned Trial Court without scrutinizing the plaint
as well evidence in the appeal. It is further submitted that the
plaintiff had never either pleaded or deposed that she was
wrongly dispossessed by the defendant Nos. 2 and 3. There is no
pleadings even by amendment in the year 1988 that the
plaintiff- respondent was wrongfully dispossessed by defendant-
appellant even on 05-05-1987 or any subsequent date. She never
deposed or filed any petition in the Court stating therein that
she has been wrongly dispossessed from the suit land . Learned
counsel for the appellants further submits that the lower Court
ought to have held that plaintiff is not entitled for recovery of
possession as the plaintiff has failed to aver and prove a case of
wrongful dispossession from her suit land and herself admits in
Patna High Court SA No.402 of 2000 dt.22-12-2023
her deposition, that defendants are in possession. Learned
counsel for the appellants submitted that the findings of the trial
court that plaintiff-respondent, who is widow and mother of
defendant no.1 is Karta of joint family ought to have been
interfered by the lower court because it is a settled law that a
widow/ woman of a Hindu joint family cannot be Karta in that
family. The reliance has been placed in the case of Commr. of
Income-Tax, Madhya Pradesh, Nagpur and Bhandara
Nagpur V. Seth Govindram Sugar Mills reported in AIR
1966 ( SC) 24 , wherein the Hon'ble Apex Court has held
"under Hindu Law coparcenership is a necessary qualification
for the managership of a joint Hindu family. A widow is not a
coparcener, she has no legal qualifications to become the
manager of a joint Hindu family. A widow of a coparcener
cannot, therefore, be a karta of the joint Hindu family."
12. He has further relied upon a decision reported in
AIR 1978 Pat 258 (Sahdeo Singh and others vs Ram chhabila
Singh and others) wherein this court has held "the question is
whether the widow could be a Karta of joint family under the
Hindu law. Coparcenership is a necessary qualification for the
managership of a joint Hindu family and a widow is, admittedly,
not a coparcener. In view of the fact that original plaintiff failed
Patna High Court SA No.402 of 2000 dt.22-12-2023
to prove that defendant No.1 is a lunatic, she cannot be a
'Karta'. It is submitted that the defendant No. 2 has claimed
title over the suit land, on the basis of registered sale deed
executed by the son of the plaintiff, defendant Nos. 2 and 3 had
not claimed title by adverse possession as the suit was instituted
in the year 1984, and the registered sale deed in favour of
defendant is of 1974, the adverse possession will be inferred
only when the possession should be actual, visible, exclusive,
hostile and peacefully continued physical possession for
statutory period of 12 years. The concept of adverse possession
has been discussed in the case of Ram Nagina Rai and Anr.
versus Deo Kumar Rai (deceased) ( by Lrs) & Anr. reported in
2019 (1)PLJR 371 (SC) and in another case reported in
(2019 )15 SCC 756 (Mallikarjunaiah v. Manjaiah & Ors.). It
is submitted that learned lower appellate court misdirected itself
that since the suit was filed within 12 years and therefore, under
Article 65 of the Act of 1963, the plaintiff is entitled to recovery
of the possession because the defendants are in illegal
possession as there is no appeal/ cross objection filed by them
against the adverse finding that registered sale dated
30-12-1974 is held to be illegal by the trial court, Thus, the
lower appellate court has misinterpreted and misapplied the law
Patna High Court SA No.402 of 2000 dt.22-12-2023
of adverse possession under the provisions of Limitation Act.
The lower appellate court allowed the appeal by wrongly
applying the principal of adverse possession only on the basis of
argument of the lawyers of the plaintiff without there being any
pleadings and evidence available on the record. It is submitted
that neither the plaintiff nor the defendants have pleaded that
the defendants have acquired adverse possession. A question of
adverse possession is a pure question of fact. There must be a
specific pleading with necessary and specific particulars as well
as evidence in support thereof. There is absolutely no claim by
the defendants and no evidence adduced on acquiring title by
adverse possession. The plaintiff- respondent never averred in
her plaint or deposed that she has been wrongfully dispossessed
by the defendant Nos. 2 and 3. With regard to adverse finding in
respect of the sale deed, learned counsel for the appellants
submits that the provision of Order XLI Rule 33 of the Civil
Procedure Code ( for brevity ' the Code') that the appellate
court has power to pass a decree or make any order which
"ought to have been passed". The appellate court has further
power that notwithstanding, the appeal is as to part only of the
decree such power may be exercised in favour of or any of the
respondents or party although respondent or party may not have
Patna High Court SA No.402 of 2000 dt.22-12-2023
filed any appeal or objection. The finding regarding illegality of
the registered sale deed dated 30-12-1974 was not challenged by
the defendant- appellant in the lower appellate court by filing
the cross- objection. It is settled law that the appellate court is
vested with power to make any such order or pass any such
decree which "ought to have been passed". The said issue has
been decided in catena of judgments of the Hon'ble Supreme
Court, such as:
(i) AIR 1969 SC 1144 (Giani Ram & Ors. v.
Ramji Lal and others)
(ii) AIR 1976 SC 634 (Koksingh v. Smt. Deokabai)
(iii)AIR 1976 SC 2229 (Damadilal & Ors.
Parashram & Ors.)
(iv) AIR 1973 Pat 126 (Ganganath Jha and
others. vs. Shashi Nath Jha & Ors.)
(v)AIR 1998 SC 3118 (K. Muthuswami Gounder
vs. N. Palaniappa Gounder
(vi) AIR 1999 SC 2626 (State of Punjab & Ors. vs.
Bakshish Singh )
(vii) (2010)10 SCC 458 (Pralhad & Ors. State of
Maharashtra & Anr)
(viii)(2009) 12 SCC 101 (Vishwanath Bapurao
Sabale v. Shalinibai Nagappa Sabale & Ors.)
(ix)(1994) 2 SCC 41 (Chaya & Ors. vs. Bapusaheb
& Ors.
13. The learned counsel for the appellant vehemently
Patna High Court SA No.402 of 2000 dt.22-12-2023
submitted that the learned lower appellate Court has failed to
exercise its jurisdiction under Order XLI Rule 33 of the Code
vested in it by law, which resulted in perverse findings against
Defendant Nos. 2 and 3. Learned Counsel for the appellants
further submitted that filing of cross-objection under Order XLI
Rule 22 of the Code is not mandatory in law against an adverse
finding by the person aggrieved, rather it is a directory. Even
without the cross -objection, the lower appellate Court could
have decided the legality or illegality in given adverse finding
on the basis of the registered sale deed under Order 41 Rule 33
of the Code. The reliance has been placed in the case of State of
Punjab and Ors. vs. Bakshish Singh reported in AIR 1999 SC
2626. The Hon'ble Apex Court has held that the provisions of
Order XLI Rule 33 gives very wide power to the appellate court
to do complete justice between the parties and enables it to pass
such decree or order as ought to have been passed or as the
nature of the case may require notwithstanding that the party in
whose favour the power is sought to be exercised has not filed
appeal or cross-objections. It is further held that the powers of
the appellate court are also indicated in Section 107 of the Code
which provides that the appellate Court shall have the same
power as are conferred on the original Court. If the Trial Court
Patna High Court SA No.402 of 2000 dt.22-12-2023
could dispose of a case finally, the appellate Court could also, by
virtue of Clause (a) of sub-section (1) of Section 107, determine
a case finally. In R.S Lala Praduman Kumar v. Virendra Goyal
reported in AIR 1969 SC 1349, it has been held that the
appellate Court could even relieve against forfeiture in a case
under the Transfer of Property Act. This too was based on the
principle that the power which was available to the original
Court, could be exercised by the appellate Court also. It is
submitted that the suit is also barred under Section 34 of the
Specific Relief Act because there is no relief of declaration of
title of the plaintiff, namely, Pan Kuwer in the plaint. Moreover,
the amendment with respect to relief of possession only was
added after about 14 years and by that time, such relief was
barred to the plaintiff and a valuable legal right had already
accrued to the defendant no. 2.
14. On the other hand, Mr. Mahesh Narayan Parbat,
learned senior counsel submitted that the findings of the learned
Trial Court which were against the defendants were not
challenged by them before the learned first appellate court by
filing appeal or cross-objection and the said finding became
final. It is submitted that original plaintiff namely, Pan Kuwer
being the widow of Deoraj Rai was one of class-I heir and was
Patna High Court SA No.402 of 2000 dt.22-12-2023
entitled for share equal to a son (defendant no. 1) with her
absolute right in his properties and thus she had right to manage
and safeguard the same and was competent to file suit in
accordance with law. It is further submitted that learned trial
court had found the sale deed, in question, dated 30.12.1974 was
not valid, genuine and without consideration and was not
executed for legal necessity. Learned senior counsel has also
submitted that if a deed is declared as illegal, then possession of
the vendee of deed becomes adverse. In this regard, reliance has
been placed in the case reported in AIR 1973 ALLAHABAD
201 (Bharit & Ors. v. The Hon'ble Board of Revenue , U.P.
at Allahabad & Ors), wherein, it has been held that if a deed
became illegal, then the possession of vendee become adverse
from the said deed and therefore the learned appellate court
below has rightly granted relief of recovery of possession. On
this ground, Article 65 of the Limitation Act is applicable. So far
provision of Order 41 Rule 33 of the Code of Civil Procedure is
concerned, the scope of provision of Order 41 Rule 33 of the
Code of Civil Procedure has been considered by the Hon'ble
Apex Court in catena of decisions referred as AIR 2003 SC
1989 as well as 2013(2) PLJR 134 (Bhagwatia Devi Vs. Arjun
Prasad Thathera with Jawahar Lal Gupta Vs. Arjun Prasad
Patna High Court SA No.402 of 2000 dt.22-12-2023
Thathera). This Court, in paragraph 17 and 18, has held that:-
(17.) The principles underlying the
provision of Order 41 Rule 22 is no longer res
integra. In the case of Banarsi Vs. Ram Phal,
2003(9)SCC 606, their lordships have
considered this provision and laid down that in a
case where the challenge to a finding by the
court below, if succeeds, would result in the
modification/variation of the decree, the
respondent cannot be permitted to do this in
absence of a cross-objection by him. It would be
condign here to notice their lordships'
observation: "...A respondent may defend himself
without filing any cross-objection to the extent to
which decree is in his favour; however, if he
proposes to attack any part of the decree he must
take cross-objection..."
(18.) In the present case, if the
plaintiff-respondents are permitted to assail the
finding regarding the adjustment of mortgage
money in the consideration amount and thereby
establish their liability to pay only Rs.1,17,500/-,
it would certainly involve modification/variation
in the impugned decree whereby the plaintiffs
have been held liable to pay Rs.1,48,500/-.Their
lordships have further also laid down that the
appellate court even in exercise of its power
under Order 41 Rule 33 C.P.C. also cannot
allow such a challenge by the respondent."
Patna High Court SA No.402 of 2000 dt.22-12-2023
15. Considering the rival submissions, material on records
as well as on perusal of impugned judgment of trial court, this
Court would find that the learned trial court has extensively
dealt with the oral and documentary evidence adduced by the
parties for deciding the issue on which the parties went to trial.
This Court would also find that regarding the knowledge about
the sale deed dated 30.12.1974, the plaintiff has deposed in
paragraph 9 of her cross- examination that she came to know
about the sale deed executed by Jugal Rai after one year of the
execution. Meaning thereby, the knowledge of registered sale
deed is of December, 1975 and the present Suit was instituted on
05.03.1984 without claiming any title over the suit land.
Moreover, nowhere in her deposition or plaintiff's evidence
shows that the plaintiff had been dispossessed by the defendant
nos. 2 and 3; neither filed any application during the pendency
of this suit nor even at the time of amendment of the plaint on
23.02.1988, by adding relief 1(ka) in the plaint only for
confirmation of possession and alternatively if she found
dispossessed then recovery of possession. However, neither any
application on date of dispossession either mentioned in trial
court or before the appellate court.
16. Articles 58 and 59 of the Schedule to the Act of 1963
Patna High Court SA No.402 of 2000 dt.22-12-2023
prescribe the period of limitation for filing a suit where a
declaration is sought, or cancellation of an instrument, or
rescission of a contract, which reads as under:
"Description of Suit Period of limitation Time from which period
begins to run
58. To obtain any Three years When the right to sue first
other declaration accrues.
59. To cancel or set aside Three years When the facts entitling
an instrument or decree or the plaintiff to have the
for the rescission of a instrument or decree
contract cancelled or set aside or
the contract rescinded
first become known to
him."
17. The period of limitation prescribed in 58 and 59 of
Act of 1963 is three years, which commences from the date
when the right to sue first accrues. In the case of Khatri Hotels
Private Limited and Another vs. Union of India and Another
reported in (2011)9 SCC 126, the Hon'ble Apex Court held that
the use of word 'first' between the words "sue" and "accrued"
would mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when the
right to sue first accrues. That is, if there are successive
violations of the right, it would not give rise to a fresh cause of
action, and the suit will be liable to be dismissed if it is beyond
the period of limitation counted from the date when the right to
sue first accrued. Thus, the right to sue accrues only when the
cause of action arises. The suit must be instituted when the right
Patna High Court SA No.402 of 2000 dt.22-12-2023
asserted in the suit is infringed. The plaintiff had admitted in her
cross-examination that she had knowledge about the sale deed
one year after execution of the sale deed, i.e. in December, 1975
and the present suit was filed in the year 1984. In the case of
Raghwendra Sharan Singh vs. Ram Prasanna Singh(dead) by
Legal Representatives reported in (2020)16 SCC 601, the
Hon'ble Supreme Court has held that the suit would be barred
by limitation under Article 59 of the Act of 1963 if it was filed
beyond three years of the execution of the registered deed. The
plaintiffs have failed to discharge the onus of proof that the suit
was filed within the period of limitation, and also failed to prove
her dispossession. Therefore, Article 65 of the Act of 1963 is not
applicable in the present suit.
18. It is a settled position of law that an appeal is a
continuation of the proceedings of the original Court. The
appellate jurisdiction involves a re-hearing on law as well as on
facts and, therefore, all questions of fact and law decided by the
trial Court are open for re-consideration. Therefore, the first
appellate Court is required to address itself to all the issues and
decide the case by giving reasons. The Court of first appeal must
record its findings only after dealing with all issues of law as
well as fact and with the evidence, oral as well as documentary,
Patna High Court SA No.402 of 2000 dt.22-12-2023
led by the parties. The judgment of the first appellate Court must
display conscious application of mind and findings supported by
reasons on all issues and contentions. These aspects have been
considered in the case of Santosh Hazari Vs. Purushottam
Tiwari (Deceased) by Lrs reported in (2001) 3 SCC 179 as well
as B. M. Narayan Gowda Vs. Shanthamma (Dead) by Lrs and
another reported in (2011) 15 SCC 476.
19. From the above discussion, it appears that the
appellate Court has failed to exercise its power and jurisdiction.
The Trial Court has rightly held that the plaintiff is not entitled
to recovery of possession. So far findings with regard to the case
of adverse possession is concerned, the appellate Court, by
making out a third case neither any claim of adverse possession
by the plaintiff nor by the defendant, assumed that when the sale
deed is void and illegal, the vendee's possession automatically
becomes adverse to the plaintiff. This finding is completely
erroneous and on wrong interpretation of law. Further the suit is
also barred by law of Limitation and the findings given by the
learned Trial Court attracting Article 59 of the Limitation Act, in
the instant matter, whereby the period of limitation is three years
is correct and the finding of the Trial Court is affirmed whereas
the finding on this score by the learned appellate Court invoking
Patna High Court SA No.402 of 2000 dt.22-12-2023
Article 65 of the Limitation Act is erroneous and perverse and,
therefore, judgment and decree of the appellate Court is set
aside.
20. In view of the above discussion as well as in the facts
and circumstances of the case, the substantial questions of law
formulated are, therefore, answered in favour of the appellants.
21. Thus, the Second Appeal has got merit and
accordingly, it is allowed.
(Khatim Reza, J)
Shyambihari/
premchand-
AFR/NAFR NAFR
CAV DATE 17-04-2023
Uploading Date 29-12-2023
Transmission Date
