Bishnu Maya Chettri And Another vs Govind Prasad Pradhan And Ors
2023 Latest Caselaw 1 Sikkim

           THE HIGH COURT OF SIKKIM : GANGTOK
                                   (Civil Appellate Jurisdiction)
                               DATED : 6th January, 2023
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   SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                                       RSA No.01 of 2019
      Appellants               :       Bishnu Maya Chettri and Another

                                                      versus

      Respondents              :       Govind Prasad Pradhan and Others

Appeal under Section 100 of the Code of Civil Procedure, 1908.
      ----------------------------------------------------------------------------------------
       Appearance
            Mr. N. Rai, Senior Advocate (Legal Aid) with Mr. Sushant Subba,
            Advocate (Legal Aid) for the Appellants.

            Mr. B. Sharma, Senior Advocate with Mr. B. N. Sharma,
            Advocate for the Respondent Nos.1, 2A and 2B.

            Mr. Sudesh Joshi, Additional Advocate General with Mr. Yadev
            Sharma, Government Advocate for the State-Respondent Nos.3
            to 7.
      -----------------------------------------------------------------------------------------
                                   JUDGMENT

Meenakshi Madan Rai, J.

1. In this Second Appeal, the following substantial

questions of law have been formulated for determination;

(i) Whether the Suit was barred by the Law of Limitation and the Trial Courts have read more into Article 65 of the Limitation Act, 1963, than provided?

(ii) Whether the Learned First Appellate Court could decide the issues as per Order XLI Rule 33 of the Code of Civil Procedure, 1908?

(iii) Whether Plaintiffs could have obtained a Decree without proving their actual case?

2. The Respondent Nos.1 and 2 herein were the Plaintiffs

before the Learned Trial Court and Appellants before the Learned

First Appellate Court. The Appellants herein were Defendant Nos.1

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

and 2 before the Learned Trial Court and Respondent Nos.1 and 2

in the Learned First Appellate Court. The State-Respondent Nos.3

to 7 were Defendants Nos.3 to 7 before the Learned Trial Court and

Respondents in the same order before the Learned First Appellate

Court. The original Respondent No.2 having passed away in the

interregnum; is represented by his wife and son Respondent

Nos.2A and 2B who shall for convenience be referred to collectively

as Respondent No.2.

3. In order to gauge the matter in its correct perspective,

it is necessary to briefly restate what the suit entails. The

Respondent No.1 and Respondent No.2 sons of one Late Nar

Bahadur Pradhan, resident of Kerabari, Sang Khola, East Sikkim, as

Plaintiffs, filed a suit for declaration, recovery of possession,

cancellation of documents, injunction and other reliefs against the

two Appellants and the State-Respondent Nos.3 to 7 before the

Learned Trial Court. They claimed that Schedule 'A' lands

described in the Plaint were recorded in the name of their father

during the Old Survey Operations of 1950-52, which he enjoyed as

the absolute owner. Schedule 'B' lands are said to be the plots of

land recorded in the names of the Respondent Nos.1 and 2 post

2004. Schedule 'C' lands comprising of two plots bearing Nos.1836

and 1801 are said to be lands illegally recorded in the name of

Respondent No.5, the Secretary, Energy and Power Department,

Government of Sikkim and Schedule 'D' lands is the area said to be

illegally allotted to the Appellants by the Respondent No.5 from Plot

No.1836 and is a part of Schedule 'C' land. The father of the

Respondent Nos.1 and 2 passed away in 1990 without partitioning

the property, thus in 2004, both of them initiated steps for

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

mutation of the Schedule 'A' properties in their individual names at

which time they learned that Plot No.1011 of the Old Survey

Operations (allegedly new Plot No.1812 as per Survey Operations

of 1978-79) and Plot No.1029/1178 of the Old Survey Operations

(allegedly new No.1836 as per Survey Operations of 1978-79),

which belonged to their late father had been illegally recorded in

the name of the Respondent No.5. The Respondent Nos.1 and 2

accordingly filed an application, Exhibit 5, under the Right to

Information (RTI) Act, 2005, before the State Public Information

Officer (SPIO) of the Respondent No.4 Department, on 04-08-

2010. The application was responded to by the SPIO (Additional

District Collector) of the Respondent No.6 Department vide Exhibit

6, which revealed that their father had never alienated the suit

properties to the Respondent No.5 by way of sale, neither was any

compensation ever paid to him. Despite this circumstance, a

Lease Deed, Exhibit 7, was executed on 26-10-2009 by the

Respondent No.5 in favour of the Appellants alienating a portion of

land from plot bearing No.1836, for a period of 99 years, on

payment. Hence, the following prayers in the Plaint;

"a. A decree declaring that plaintiffs are the absolute owner of Schedule-'A' properties by way of inheritance.

b. A decree declaring that the defendant no.5 has no right, title and authority over Schedule-'C' land.

c. A decree declaring that the record of right pertaining to Schedule-'C' land in the name of defendant no.5 is illegal and the same is liable to be declared null and void and cancelled. d. A decree declaring that defendant no.5 has no right, title and authority to execute lease deed with respect to Schedule-'D' property which is part and partial of Schedule-'C' property.(sic, parcel).

e. A decree declaring execution of lese (sic) deed in favour of defendant no.1 by defendant no.5 is illegal, null and void and liable to be cancelled.

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

f. A decree declaring the defendant no.1 cannot acquire right, title and interest over Schedule- 'D' property by way of lease deed executed by defendant no.5.

g. A decree declaring that lease deed executed by defendant no.5 in favour of defendant no.1 be cancelled.

h. A decree declaring defendant no.1 and /or defendant no.1 and 2 have illegally entered into the Schedule-'D' property and illegally constructing the house in the Schedule-'D' by demolishing existing structure.

i. An injunction restraining the defendant no.1 and 2 from continuing the construction in the Schedule-'D' land.

j. An ad-interim ex-parte injunction restraining the defendant no.1 and / or defendant no.1 and 2 from continuing the construction in the Schedule -'D' land in terms of (i) above. k. A decree for recovery of possession of Schedule-'D' property be passed in favour of the plaintiffs after demolishing the on going construction.

l. A decree declaring that the defendant no.5 and/ or each of the defendants have no right, title and interest over the property and they may be evicted from the Schedule-'C' property. m. A decree for correction of record of right be passed in favor of the plaintiffs deleting the names of the defendant no.5 from the Schedule-'C' property.

n. A decree for permanent perpetual injunction restraining the defendant no.5 and /or each of the defendant and from raising any construction or changing the nature and the character of the Schedule-'C' and Schedule-'D' property by their agents, representatives in terms of prayer (i) above.

o. A decree for costs of the suit;

p. Any other relief or reliefs for which the plaintiffs are entitled to."

4(i). The Appellants as Defendant Nos.1 and 2 filed their

Written Statement averring that, the Plaintiffs/Respondent Nos.1

and 2 are not entitled to the reliefs as the suit is misconceived and

not tenable in law or facts as the Appellants had adhered to the

terms and conditions laid down by the Respondent No.5 in the

Lease Deed.

(ii) State-Respondent Nos.3, 4, 6 and 7 had no Written

Statements to file.

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

5. Respondent No.5 disputing the claims of Respondent

Nos.1 and 2 averred in its Written Statement that Late Nar

Bahadur Pradhan in fact sold out Plot No.1011 and Plot

Nos.1029/1178 to the Respondent No.5 Department during 1962-

64, the Department during that period having purchased several

other plots of land in and around the suit land for construction of

the "Jali Hydel Project". Pursuant thereto, the Plots were recorded

in the name of the Respondent No.5 as its absolute owner. On

correction of the old survey records of 1950-51, the new survey

records of 1976-83 reveal that the Respondent No.5 is the absolute

owner of the Schedule 'C' properties upon which residential staff

quarters were constructed in the early 1980s, during the life time

of Nar Bahadur Pradhan to which he raised no objection, as the

transaction was legal. Now, the Respondent Nos.1 and 2 cannot

utilise the fact of non-availability of records pertaining to the

purchase executed several decades ago, to their advantage. On

26-10-2009 on the request of Appellant No.1 the Lease Deed

(Exhibit 7) was executed in her favour but her request dated 16-

09-2010 for additional allotment of land, was rejected by

Respondent No.5. That, the Respondent No.5 is not answerable to

the Respondent Nos.1 and 2 so far as the Lease Deed is

concerned. The suit being malafide be dismissed.

6. The Learned Trial Court on 03-06-2015 settled nine

Issues for determination.

7(i). Issue No.2 was taken up first for discussion and

decision viz; 2. Whether the defendant No.5 has acquired the suit

property from the father of the Plaintiffs at any point of time?

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

The Learned Trial Court concluded that Respondent No.5 had

failed to prove that it acquired or purchased the suit property from

the father of the Respondent Nos.1 and 2. The Issue was

accordingly decided against the Respondent No.5.

(ii) Issue Nos.3 and 5 were taken up together;

3. Whether the defendant No.5 has any right, title and interest over Schedule "C" and "D" properties?

5. Whether the Plaintiffs are the absolute owner of Schedule "C" and "D" properties being the legal heirs and descendants of Late Nar Bdr. Pradhan?

In Issue No.3, it was held that the Respondent No.5 had

possessory right and interest flowing from such possession over the

suit property. In Issue No.5, it was observed that the Respondent

Nos.1 and 2 failed to prove that Plot Nos.1801, 1836 or for that

matter Plot No.1812 are the corresponding Plots alleged to be 1011

and 1029/1178, hence the Respondent Nos.1 and 2 are not the

absolute owners of the suit properties.

(iii) Issue Nos.4 and 6 were taken up together;

4. Whether the defendant No.5 has authority to allot schedule "D" property in favour of defendant No.1?

6. Whether the lease deed dated:26.10.2009 is a void document and is liable to be cancelled?

It was found that none of the parties were able to establish

their title over the property, and the possessory right of the

Respondent No.5 did not lend it the authority to lease out the suit

property, unless authorised to do so by the owner of the property.

Thus, Issue No.4 was decided against the Respondent No.5. Issue

No.6, was also decided against Respondent No.5 with the

reasoning that Exhibit 7 is a void Lease Deed as it fails to comply

with Article 299 of the Constitution of India.

(iv) Issue Nos.7 and 8 were considered together;

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

7. Whether the defendant No.1 has been allotted with schedule "D" property by defendant No.5 by executing a Registered Lease Deed?

8. Whether defendant No.1 is possessing the schedule "D"

property legally?

It was found that the Lease Deed (Exhibit 7) was admittedly

a registered document. Hence, the allotment to the Appellant No.1

was made by way of a registered document. In Issue No.8, it was

held that the Lease Deed (Exhibit 7) is void hence no legality can

be drawn on its basis. That, possession of the leased portion by

Appellant No.1 is not disputed and the possession is through the

permission of Respondent No.5, therefore, it cannot be said to be

illegal except against the true owners. Hence, the Issue was

decided in favour of the Appellant No.1.

(v) In Issue No.1;

1. Whether the present suit is maintainable and whether the same is barred by limitation?

It came to be decided that the Suit is not barred by limitation

but that Respondent Nos.1 and 2 had failed to establish title over

the suit property and therefore had no locus standi in the suit,

which was thus not maintainable.

(vi) In Issue No.9;

9. To what relief or reliefs parties are entitled? It was held that the Respondent Nos.1 and 2 were not

entitled to the reliefs sought. That, Respondent No.5 had a

possessory right over the said properties which however did not

give them authority to lease it out to the Appellant No.1.

8(i). Aggrieved thereof, the Respondent Nos.1 and

2/Plaintiffs were before the Learned First Appellate Court in Title

Appeal No.01 of 2017 (Govind Prasad Pradhan and Another vs. Bishnu

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

Maya Chettri and Others) as Appellants, assailing the said Judgment

of the Learned Trial Court.

(ii) The Learned First Appellate Court took up Issue No.2

first and agreed with the findings of the Learned Trial Court. In

Issue No.3, in contradiction to the findings of the Learned Trial

Court, it was concluded that Respondent No.5 had no possessory

right having failed to prove the means of transfer of the suit land to

them and thereby it could not have leased out the disputed

property to the Appellant No.1. Without going into the specifics of

Issue No.5 the Learned First Appellate Court concluded that

"admittedly" it was the case of Respondent Nos.1 and 2 that

Schedule 'C' property covered by Plot Nos.1812 and 1836 is the

corresponding Plot Nos.1011 and 1029/1178 and decided this Issue

in favour of the Respondent Nos.1 and 2.

(iii) In Issue Nos.4 and 6 it was observed that as the

Respondent Nos.1 and 2 did not press these issues, thus the

findings of the Learned Trial Court brooked no interference.

(iv) In Issue Nos.7 and 8 reversing the findings of the

Learned Trial Court it was observed that when Respondent No.5

had no authority to lease out the suit property and when the Lease

Deed document (Exhibit 7), itself was void ab initio, the allotment

of Schedule 'D' property by the Respondent No.5 in favour of the

Appellant No.1 by executing a registered Lease Deed had no

sanctity being an invalid deed.

(v) In Issue No.1 the finding of the Learned Trial Court on

limitation was concurred with, the Learned First Appellate Court

having reasoned that the limitation period started from the date of

knowledge and in the case at hand the Respondent Nos.1 and 2

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

first came to learn of the relevant facts in the year 2004, hence the

limitation fell within the ambit of Article 65 of the Limitation Act,

1963. However, with regard to the maintainability of the suit it

was concluded that in view of the findings and the decision arrived

at while dealing with Issue Nos.2, 4 and 6, the suit of the

Respondent Nos.1 and 2/Plaintiffs is maintainable, consequently

the finding of the Learned Trial Court on this count was set aside.

(vi) On Issue No.9, it was concluded that the Suit of the

Respondent No.1 and 2 deserves to be decreed in terms of the

Prayers made in the Plaint, the Prayers (i), (j) and (o) were

however disallowed, the said prayers are extracted below for

convenient reading;

"The plaintiffs therefore pray for the following reliefs:

.................................................................. i. An injunction restraining the defendant no.1 and 2 from continuing the construction in the Schedule-'D' land.

j. An ad-interim ex-parte injunction restraining the defendant no.1 and / or defendant no.1 and 2 from continuing the construction in the Schedule -'D' land in terms of (i) above. .................................................................. o. A decree for costs of the suit;

.................................................................."

It was further observed that the Respondent Nos.1 and 2

neither filed any Counter-Claim nor Cross-Appeal. The Appeal was

thus allowed and the Judgment and Decree of the Learned Trial

Court was set aside in its entirety despite the Learned First

Appellate Court being in agreement with the Learned Trial Court on

Issue Nos.2, 4, 6 and part of Issue No.1 i.e., on the point of

limitation.

9. Dissatisfied, the Appellant Nos.1 and 2 are before this

Court. According to Learned Senior Counsel Shri N. Rai for the

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

Appellants, the Learned Trial Court had reached a finding in Issue

Nos.1, 3 and 5 that the suit property was not that of the

Respondent Nos.1 and 2. However, the Learned First Appellate

Court interfered with the findings of the Learned Trial Court and

concluded that, on the failure of the Respondent No.5 to furnish

proof of acquisition or purchase of the suit property, the claim of

possessory rights of the Respondent No.5 has no weight in the

eyes of law. It was contended that the Court erred in holding so

as the Respondent Nos.1 and 2 are required to rely on the strength

of their own case and not on the weakness of the Appellants case

or that of State-Respondent Nos.3 to 7. The Respondent Nos.1

and 2 failed to establish their claim over the suit properties and

their case is built on the foundation of the response of Respondent

No.6 to their RTI query, which cannot be the basis of their claim.

That, Plot No.1836 measuring an area of 0.274 hectares is found

recorded in the name of the Respondent No.5, the Secretary,

Energy and Power Department, Government of Sikkim during the

1976-83 Survey Operations and no information has been provided

by the Respondent Nos.1 and 2 as to how Plot No.1836 was earlier

Plot No.1011 or Plot No.1029/1178 was the new Plot No.1801,

considering that the measurements of the alleged old and new

plots do not corroborate with each other. Besides, the Suit is

barred by limitation, the Respondent No.5 having acquired the

property in 1963-64 from late Nar Bahadur Pradhan, who passed

away in 1990, while the partition took place in 2004. Thus,

limitation begins to run from 1963-64 and cannot be computed

from 2004, the year of partition of properties. That, the Learned

Courts below considered Article 65 of the Limitation Act, 1963,

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

(hereinafter, the "Limitation Act"), in reaching their decision that

the suit is not barred by limitation, however, the correct provision

to be invoked is Article 58 of the Limitation Act, which deals with

obtaining declaration where the period of limitation prescribed is

three years from the time the right to sue first accrues. That,

recovery of possession of the suit property and cancellation of

documents are all subsequent prayers to the primary prayer for

declaration of title, hence application of Article 65 of the Limitation

Act is erroneous. Consequently, the suit is barred by limitation

even if it is construed to be from the year 2004. The Learned First

Appellate Court was under a misconception that limitation would

begin to run from the "date of knowledge" sans such prescription in

Article 65 of the Limitation Act. Limitation commences from the

date on which Respondent Nos.1 and 2 were entitled to approach

the Court for relief. Reliance was placed on Bhavnagar Municipality

vs. Union of India and Another1. That, the claim of the Appellants

and that of Respondent Nos.1 and 2 are on the same footing both

being without documents of title, nevertheless the Appellants have

a stronger claim in view of the fact that Respondent No.5 who

allotted them Schedule 'D' lands was in possession of the disputed

property from around the year 1963 onwards. To drive home this

point the ratio in Shri K.B. Bhandari vs. Shri Laxuman Limboo and

Another2 was referred to, besides, the Respondent Nos.1 and 2

were not even in possession of the suit property nor were they in

possession of documents to substantiate their claim that their

father had not sold the suit property to Respondent No.5. Hence,

the Appeal be allowed.

AIR 1990 SC 717

SLR (2017) SIKKIM 41

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

10. Learned Additional Advocate General Shri Sudesh Joshi

advancing his submissions for the State-Respondent Nos.3 to 7,

admitted that, there were no Written Statements, Counter-Claim or

Cross-Objection filed by the State-Respondent Nos.3, 4, 6 and 7

however relying on Mahant Dhangir and Another vs. Madan Mohan and

Others3, it was urged that Courts can consider the verbal

submissions of such Respondents under Order 41 Rule 33 of the

Code of Civil Procedure, 1908 (hereinafter, the "CPC") and the

Appellate Court can exercise the power under Rule 33 even if the

Appeal is only against a part of the Decree of the Lower Court.

That, the Supreme Court in the above ratio has clearly held that

the sweep of the power under Rule 33 is wide enough to determine

any question not only between the Appellant and the Respondent,

but also between Respondent and Co-Respondents. The Appellate

Court can therefore pass any Decree or Order which ought to have

been passed in the circumstances of the case. It was next urged

that the Respondent Nos.1 and 2 were not in possession of the suit

property and in any event are restrained by the provisions of

Sections 6 of the Specific Relief Act, 1963 (hereinafter, the

"Specific Relief Act") from filing the suit against the State-

Respondents. That, Section 6(4) of the Specific Relief Act also

does not come to the aid of the Respondent Nos.1 and 2, as they

have failed to prove title and are thereby hit by the provisions of

Section 6(2)(b) of the said Act. Consequently, the suit is not

maintainable. That, the cross-examination by the Respondent

No.5 would indicate that during the year 2004 when the family

partition took place, the Respondent Nos.1 and 2 came to learn

that Plot No.1836 was recorded in the name of the Respondent

1987 (Supp) SCC 528

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

No.5 Department, if that be so, it is evident that the possession

was forcible and open. That, Article 64 and not Article 65 of the

Limitation Act is applicable in the instant matter as the Respondent

Nos.1 and 2 did not have title and the suit was filed in an effort to

circumvent the provisions of Section 6 of the Specific Relief Act.

Article 64 of the Limitation Act would indicate that limitation would

run from the admitted date of dispossession, which is 1973,

therefore the suit is barred by limitation. Garnering strength from

Ramiah vs. N. Narayana Reddy (Dead) by LRs. , it was contended that

the Hon'ble Supreme Court propounded that, when the Appellant

was ousted in 1971 and the suit filed only in 1984 the suit was

barred by limitation and dismissed it. Reliance was also placed on

Nazir Mohamed vs. J. Kamala and Others5 on this aspect. That, in

Poona Ram vs. Moti Ram (Dead) through Legal Representatives and

Others6, it was held that settled possession or effective possession

of a person without title entitles him to protect his possession as if

he were a true owner. That, the Learned Trial Court had correctly

held that Respondent No.5 had possessory rights and the

Respondent Nos.1 and 2 had no locus standi to file the suit and

correctly dismissed the suit of the Respondent Nos.1 and 2, which

was erroneously set aside by the Learned First Appellate Court

despite the Respondent Nos.1 and 2 having failed to establish title

over the suit property. Hence, the Judgment of the Learned Trial

Court be restored.

11. Learned Senior Counsel for the Respondent Nos.1 and

2 Shri B. Sharma, placing his arguments contended that the

provisions of the Specific Relief Act invoked by State-Respondent

(2004) 7 SCC 541

(2020) 19 SCC 57

(2019) 11 SCC 309

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

Nos.3 to 7 are not applicable in the instant matter which envisages

a summary suit for possession of property. That, the suit is not

barred by limitation as specifically held by both the Learned Courts

below. Limitation runs from the date of 'knowledge' of

dispossession i.e., 2004 as concluded by the Learned First

Appellate Court and not from the 'date' of dispossession. On this

count reliance was placed on Gottumukkala Sundara Narasaraju vs.

Pinnamaraju Venkata Narasimharaju7. Relying on the ratio in Eastern

Coalfields Limited and Others vs. Rabindra Kumar Bharti8, Learned

Senior Counsel urged that Order 41 Rule 33 of the CPC is a rare

jurisdiction and is to be applied for the purpose of reaching justice

on the special facts of a case and is not to be applied across the

board. That, as the Appellants and the State-Respondents failed to

file Cross-Appeals before the Learned First Appellate Court

although they were not debarred from doing so, therefore, they

cannot now turn around and invoke the provisions of Order 41 Rule

33 of the CPC before this Court. That, the Respondent Nos.1 and 2

have proved their case by furnishing relevant documents and the

finding of the Learned First Appellate Court is not erroneous. The

ratio on State of Haryana vs. Mukesh Kumar and Others9, was invoked

on the point of adverse possession. That, it is proved that the

property was recorded in the name of the father of Respondent

Nos.1 and 2 and in the absence of documentary evidence indicating

the mode of transfer to the Respondent No.5, the Respondent

Nos.1 and 2 were the owners of the suit property.

12(i). Before delving into discussions on the substantial

questions of law it is essential to first consider the legal limitations

2015 SCC OnLine Hyd 470

2022 SCC OnLine SC 445

AIR 2012 SC 559

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

prescribed in determining a Second Appeal under Section 100 of

the CPC. In Narayan Sitaramji Badwaik (Dead) through LRs. vs.

Bisaram and Others10, it was held as follows;

"10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 : (AIR 2001 SC

965)]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as follows:

Section 103 . Power of High Court to Determine Issue of Fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.

11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 SCC 216 : (2010 AIR SCW 7020), held as follows;

"26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.

27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the finding of fact recorded by

AIR 2021 SC 2438

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

the second appeal stood vitiated by nonconsideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. ................

28. If a finding of fact is arrived by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. ............."............" (emphasis supplied)

(ii) In Maharashtra State Electricity Distribution Company

Limited vs. Maharashtra Electricity Regulatory Commission and

Others11, by reference to plethora of decisions of the Supreme

Court itself, it was reiterated that interference with concurrent

findings of lower Courts in Second Appeal must be avoided under

Section 100 of the CPC, unless warranted by compelling reasons.

(iii) In Diety Pattabhiramaswamy vs. S. Hanymayya and

Others12, the Supreme Court observed as follows;

"13. .......... As early as 1891, the Judicial Committee in Durga Chowdhrani vs. Jawahir Singh, 17 Ind. App 122 (PC), stated thus:

"There is no jurisdiction to entertain a second appeal on the grounds of erroneous finding of act, however gross the error may seem to be."............"

Thus, the parameters of Section 100 of the CPC have been

succinctly laid down in the Judgments referred to above which

being self explanatory require no elucidation.

13(i). Bearing the above settled position of law in mind, the

first substantial question of law is taken up for determination;

(i) Whether the Suit was barred by the Law of Limitation and the Trial Courts have read more into Article 65 of the Limitation Act, 1963, than provided?

Before embarking on a discussion on the question, a

typographical error is noticed in the question in as much as the

(2022) 4 SCC 657

AIR 1959 SC 57

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

Courts below have been referred to as the "Trial Courts" instead of

the "Learned Trial Court" and "Learned First Appellate Court".

Accordingly, the word "Trial Courts" in the question extracted supra

shall be read and construed as Learned Trial Court and Learned

First Appellate Court.

(ii) The provisions of Articles 58, 64 and 65 of the

Limitation Act are extracted hereinbelow for quick reference.

"Description of suit Period of Time from which period Limitation begins to run

58. To obtain any other Three years When the right to sue declaration. first accrues.

        Description of suit               Period of       Time from which period
                                         Limitation           begins to run

64. For        possession      of          Twelve        The        date         of
    immovable property based                years        dispossession.
    on previous possession and
    not on title, when the
    plaintiff while in possession
    of the property has been
    dispossessed.

        Description of suit               Period of       Time from which period
                                         Limitation           begins to run

65. For      possession    of              Twelve        When the possession of
    immovable property or any               years        the defendant becomes
    interest therein based on                            adverse to the plaintiff."
    title.

(iii)         Indubitably, in a suit only for declaration of title, the

limitation is three years under Article 58 of the Limitation Act and

the time from which the period of limitation commences is the time

when the right to sue first accrues. Thus, when the suit is only for

declaration of title sans other reliefs, the period of limitation is as

prescribed under Article 58 of the Limitation Act. It is admitted by

the parties opposing Respondent Nos.1 and 2 herein that, the suit

is not merely for declaration of title. The Respondent Nos.1 and 2

have, besides seeking declaration of their title over the suit

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

properties also sought for a Decree for recovery of possession of

Schedule 'D' property and a Decree for correction of records of

rights. Article 64 of the Limitation Act as per Shri Sudesh Joshi,

Learned Additional Advocate General for the State-Respondents is

the correct article for the purposes of the instant suit. However, a

bare reading of the provision would indicate that it is not applicable

to the circumstances of the case of Respondent Nos.1 and 2 as

their specific claim is that their predecessor in interest had title to

the suit properties. Article 64 of the Limitation Act deals with suits

based on "possession" and not on "title", in such a case the Plaintiff

who while in possession had been dispossessed can file a suit

within a period of 12 years from the date of dispossession. For the

purpose of Article 64 of the Limitation Act there is no question of

proving any title. A cursory reading of Article 65 on the other

hand indicates that it relates to a suit for possession based on title.

If the Defendant seeks to defeat the rights of the Plaintiff he has to

establish his adverse possession for a period of 12 years which has

the effect of extinguishing the title of the owner by the operation of

Section 27 of the Limitation Act. On such failure the Plaintiff

cannot be non-suited merely because he was not able to prove

possession within 12 years.

(iv) In Sopanrao and Another vs. Syed Mehmood and Others13,

the Supreme Court inter alia observed as follows;

"9. .......... In a suit filed for possession based on title, the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have same title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or

(2019) 7 SCC 76

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff...................."

(v) The arguments of Learned Additional Advocate General

regarding Section 6 of the Specific Relief Act are not tenable in

view of the provisions of Section 5 of the Specific Relief Act. The

object of Section 6 of the Specific Relief Act is to provide a special

and speedy remedy for a particular kind of grievance, to replace in

possession a person who has been evicted, from immovable

property of which he had been possessed otherwise than by

process of law. The Section only contemplates a summary suit for

possession of immovable property and the question of title is

wholly outside its scope.

(vi) It thus obtains that when a suit is based on title the

Plaintiff need not prove that he was in possession of the land

sought to be recovered within 12 years of the suit. In light of the

foregoing discussions it is evident that the period of limitation for

institution of a suit for declaration of title seeking the further relief

of recovery of possession based on title falls within the ambit of

Article 65 of the Limitation Act. Hence, the suit is not barred by

limitation.

14(i). The second substantial question of law is taken up next

for consideration which reads as follows;

(ii) Whether the Learned First Appellate Court could decide the issues as per Order XLI Rule 33 of the Code of Civil Procedure, 1908?

In this context the provisions of Order 41 Rule 33 of the CPC

which are extracted hereinbelow are required to be considered.

Order 41 Rule 33 of the CPC as follows;

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

"33. Power of Court of Appeal─ The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."

(ii) Illustration to Order 41 Rule 33 provides as follows;

"Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y."

(iii) Section 35A referred to above deals with Compensatory

costs in respect of false or vexatious claims or defences.

(iv) The provision clarifies that the Appellate Court is

clothed with the fullest power to do complete justice between the

parties though the Appeal does not extend to the whole of the

Decree and though some of the parties Appeal and others do not.

The Court has ample power to pass any order as may be necessary

for the ends of justice and when doing so a party who has not

appealed may be benefitted by the order. In Banarsi and Others vs.

Ram Phal , the Supreme Court while discussing the ambit of Order

41 Rule 33 of the CPC held that;

"15. ............. Usually the power under Rule 33 is exercised when the portion of the

AIR 2003 SC 1989

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be received; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. ................."

The powers in this rule are ordinarily limited to those cases

where as a result of the Appellate Courts interference with a

Decree in favour of the Appellant, a further interference is required

in order to adjust the rights of the parties in accordance with

justice, equity and good conscience [See Bajranglal Shivchandrai

Ruia vs. Shashikant N. Ruia and Others15].

(v) The Learned Additional Advocate General for the State-

Respondents would invoke this provision by way of abundant

precaution as the State-Respondents, except Respondent No.5,

failed to file Written Statements/Counter-Claims before the

Learned Trial Court and Cross-Appeal before the Learned First

Appellate Court. It was contended by the Learned Additional

Advocate General that despite such a circumstance the Appellate

Courts could hear the arguments advanced by such Respondents

and grants reliefs to meet the ends of justice. The pivotal claim

of Respondent Nos.1 and 2 was against Respondent No.5 on the

contention that Respondent No.5 was in illegal possession of their

land. The Learned First Appellate Court has considered all the

Issues settled and determined by the Learned Trial Court and no

AIR 2004 SC 2546

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

specific argument has been raised on this count that the Learned

First Appellate Court failed in its duty. In light of this position

nothing further remains for discussion on this count.

15(i). The third substantial question of law is thus taken up

for consideration which reads as follows;

(iii) Whether Plaintiffs could have obtained a Decree without proving their actual case?

The Learned Trial Court while arriving at its findings in Issue

Nos.3 and 5 examined inter alia Exhibit D1/A, admittedly a

duplicate copy of the original "Parcha" furnished from the records

of the Respondent No.5, by the Appellants. Pausing here for a

moment, legally the document could not have been admitted in

evidence in view of the provisions of Section 64 and Section 65 of

the Indian Evidence Act, 1872 and was thus beyond the scope of

consideration of both Learned Courts below. At the same time it is

worth noticing that no reasons were sought either by the opposing

parties or by the Learned Trial Court for non-furnishing of the

original document. It needs no reiteration here that a proper

foundation must be laid to establish the right to adduce secondary

evidence, besides, the well known principle with regard to proof of

documents being that best evidence must come before the Court,

which of course is the original document, thereby furnishing an

opportunity to the Court to examine its various aspects. Needless

to clarify that, although the law insists upon production of the best

evidence, yet it permits with proper safeguards the production of

the secondary evidence of the original, if the requisite conditions

laid down by law are satisfied. The requisite safeguards have not

been followed in the production of Exhibit D1/A, however in the

light of the settled position of law that documents admitted and

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

considered by Courts below cannot be questioned at the appellate

stage, nothing further needs to be discussed on this facet at the

stage of Second Appeal.

(ii) The Learned Trial Court on examining Exhibit D1/A

concluded that errors emanated in the areas between the old plots

and the corresponding new plots. That, the mismatch clearly

showed that Plot No.1011 and Plot No.1029/1178 cannot be either

Plot Nos.1801, 1812 and 1836, as the difference in area could not

be ignored. The Learned Trial Court was also of the view that the

Respondent Nos.1 and 2 did not furnish any evidence to prove that

Plot Nos.1801 and 1836 are the Plots 1011 and 1029/1178. The

Learned Trial Court was not inclined to rely on Exhibit 6 the

response to the RTI query of the Respondent Nos.1 and 2 in view

of the fact that no records were available with Respondent No.5

when Exhibit 6 was prepared and the response also erroneously

mentioned that the area of Plot No.1011 was 1.14 acre whereas

Exhibit 1 indicated the area to be 0.14 acre, thereby making

Exhibit 6 inherently unreliable. That, late Nar Bahadur Pradhan

owned a total of 3.44 acres while the Respondent Nos.1 and 2

presently owned 3.25 acres, the difference thereby being about

0.19 acres, which nearly corresponds to the area of Plot

No.1029/1178 in 1950-52. That, admittedly their father had

alienated two plots of land, one to Norden Tshering and another to

Padam Bahadur Rai respectively, while the Respondent Nos.1 and 2

had also alienated a portion of Schedule 'A' property. The

Respondent Nos.1 and 2 in their evidence failed to indicate which

plots were alienated by their father and which plots by them from

Schedule 'A' property. Thus, a calculation regarding the area of

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

land presently held by the Respondent Nos.1 and 2 with the

addition of areas covered by Plot No.1801 and 1836 would add up

to 4.54 acres, which exceeds the total lands held by their father

viz. 3.44 acres, hence it was concluded that new plots being Plot

No.1801 and Plot No.1836 are not the old plots, viz Plot Nos.1011

and 1029/1178.

(iii) The Learned First Appellate Court disagreed with the

findings of the Learned Trial Court observing that the Respondent

No.5 had admitted that the corresponding plots after the New

Survey Operations are indeed Plot Nos.1011 and 1812, apart from

which the Respondent No.5 failed to bring on record evidence to

establish that the suit property was purchased or acquired or

transferred by way of any legal documents, from late Nar Bahadur

Pradhan to Respondent No.5 at any point of time. That, it was an

admitted case that as per the old survey of 1950-52 the suit

property was recorded in the name of the father of the Respondent

Nos.1 and 2. Thus, the claim of possessory right of the

Respondent No.5 was not legally tenable. It was further observed

that the State-Respondents had failed to deny the averments made

in the Plaint which tantamounts to admission and that admitted

facts need not be proved. Hence, the findings of the Learned Trial

Court on Issue Nos.3 and 5 were set aside and decided in favour of

the Respondent Nos.1 and 2.

(iv) Having considered the differing opinions of the Learned

Courts below it is pertinent to mention that the bedrock in a suit

for title is that the Plaintiffs are to succeed on the strength of their

own case and not rely on the weakness of the Defendants case.

On this facet the Supreme Court in Jagdish Prasad Patel (Dead)

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

Through Legal Representatives and Another vs. Shivnath and Others ,

held as follows;

"44. ................. In a suit for declaration of title and possession, the respondent- plaintiffs could succeed only on the strength of their own title and not on the weakness of the case of the appellant-defendants. The burden is on the respondent-plaintiffs to establish their title to the suit properties to show that they are entitled for a decree for declaration. The respondent-plaintiffs have neither produced the title documents i.e. patta-lease which the respondent-plaintiffs are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for a few khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.

45. The observations that in a suit for declaration of title, the respondent-plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellant-

defendants have proved their case or not, in Union of India v. Vasabi Coop. Housing Society Ltd.17 it was held as under; (SCC p.275, para

15) "15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."." (emphasis supplied)

(v) In light of the settled position of law, it is now to be

determined whether the Learned First Appellate Court correctly

decreed the suit of the Respondent Nos.1 and 2. In Poona Ram vs.

Moti Ram (Dead) through Legal Representatives and Others , the

Hon'ble Supreme Court referred to the decision in Nair Service

Society Ltd. vs. Rev. Father K. C. Alexander and Others where the

Court ruled that when the facts disclose no title in either party,

possession alone is the decisive factor. It was further observed in

Nair Service Society Ltd. (supra) that a person in possession of land

(2019) 6 SCC 82

(2014) 2 SCC 269

(2019) 11 SCC 309

AIR 1968 SC 1165

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

in assumed character of owner and exercising peaceably the

ordinary rights of ownership, has a perfectly good title against the

entire world except the rightful owner. In such a case, the

Defendant must show in himself or his predecessor a valid legal

title and probably a possession prior to the Plaintiff's and thus be

able to raise a presumption prior in time. In Rame Gowda vs. M.

Varadappa Naidu , a three-Judge Bench of the Supreme Court inter

alia held that in the absence of proof of better title, possession or

prior peaceful settled possession is itself evidence of title. Law

presumes the possession to go with title unless rebutted.

(vi) In view of the above pronouncements concerning

possessory title, while examining the documents relied on by the

parties, it is seen that Exhibit 1 is the "Parcha Khatiyan" in the

name of the father of Respondent Nos.1 and 2 said to be records of

land pertaining to the year 1950-51, confirmed by Exhibit 6 the

response of Respondent No.6 to the RTI query, Exhibit 5, of

Respondent Nos.1 and 2. Undoubtedly there is a discrepancy in

the area in Plot No.1011 which as per Exhibit 1 measures "0.14

acres" but as per Exhibit 6 measures 1.14 acres. However, Exhibit

6 informs that Plot No.1011 and Plot No.1029/1178 measuring

1.45 acres were recorded in the name of late Nar Bahadur Pradhan

during 1950-51 survey from which areas measuring 0.53 acres and

0.29 acres respectively from the above plots were deducted and

recorded in the name of "Power Project" and mutated in the name

of Respondent No.5 Department. This was done before 1976-83

survey operations. As per Exhibit 6, Plot No.1836 measuring

0.2740 hectares was found recorded in the name of Respondent

No.5 Department during 1976-83 survey operation. Admittedly, no

(2004) 1 SCC 769

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

document of sale or agreement executed between the owner and

the Respondent No.5 Department were found to establish mode of

acquisition of the suit properties by Respondent No.5 from the

father of Respondent Nos.1 and 2.

(vii) The suit properties have been described by Respondent

Nos.1 and 2. Schedule 'C' to the Plaint mentions the old plot

numbers and the corresponding new plot numbers. Respondent

No.1 filed his evidence on affidavit, Exhibit 15 and claimed that in

the year 2004 when he and his brother sought mutation of

Schedule 'A' property in their individual names they came to learn

that Plot No.1011 (Old Survey) corresponding to new Plot No.1812

and 1029/1178 corresponding to new Plot No.1836 were illegally

recorded in the name of the Respondent No.5 Department. They

have relied on the title deeds recorded in the name of their father

to establish ownership and title over the suit properties. Their

claims have not been demolished by way of cross-examination and

the officer representing Respondent No.5 has admitted in evidence

that the old plot numbers correspond to the new plot numbers.

The Learned Trial Court detailed in its observation as to how the

disputed land could not belong to Respondent Nos.1 and 2 by way

of mathematical calculations, in view of the discrepancies in the

measurement of the old and the new plot numbers. In the first

instance when Respondent No.5 has failed to contradict the case of

Respondent Nos.1 and 2 on this aspect, the Courts cannot embark

on a solitary investigation of the truth. Secondly, it is essential to

mention that in case of discrepancy between dimensions and

boundaries, the rule of interpretation is that boundaries must

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

prevail as against the measurement. In Subbayya Chakkiliyan vs.

Maniam Muthiah Goundan and Another21, it was held that;

"............. Ordinarily when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against the measurements. ............"

On the same lines in T. Rajlu Naidu vs. M.E.R. Malak22, it has

been held as follows;

".......... In case of discrepancy between dimensions and boundaries the area specified within the boundaries will pass, whether it be less or more than the quantity specified. .........."

The boundaries of the Schedule lands put forth by the

Respondent Nos.1 and 2 have not been challenged or demolished

by the opposing parties. The claim that their father was their

predecessor in interest of Schedule 'A' properties has not been

demolished. The contents of Exhibit 1 relied on by Respondent

Nos.1 and 2 have not been contradicted, in fact Respondent No.5

confirmed that numbers of the old plots in the name of the father

of Respondent Nos.1 and 2 are the corresponding new plot

numbers.

(viii) In D.B Basnett (Dead) through Legal Representatives vs.

Collector, East District, Gangtok, Sikkim and Another23, the facts by

and large were similar. The suit property was said to belong to one

Man Bahadur Basnett who passed away in 1991 whereupon the

property fell to the share of the Appellant. When the Appellant

visited the suit property in March 2002 he found that the

Respondents had wrongly encroached and trespassed the same

and were using it as an agricultural farm. The sum and substance

AIR 1924 MADRAS 493

AIR 1939 NAGPUR 197

(2020) 4 SCC 572

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

of the claim was that the procedure envisaged under the Sikkim

Land (Requisition and Acquisition) Act, 1977, had not been invoked

and followed. The Respondents case therein was not of adverse

possession but that they had acquired the land through due

process and paid compensation for the same. This is the exact

same contention of the Respondent No.5 in this Appeal hence

reliance by Learned Senior Counsel for the Respondent Nos.1 and 2

on the ratio of State of Haryana vs. Mukesh Kumar and Others (supra)

is misplaced. The Supreme Court in D.B Basnett (supra) while

referring to a plethora of Judgments on the point held that to

forcibly dispossess a person of his private property without

following due process of law would be violative of a human right as

also the constitutional right under Article 300 A of the Constitution

and ruled as follows;

"19. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy24, wherein it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published."

(ix) Although Respondent No.5 has been in possession of

the suit properties, in the absence of documentary evidence to

establish the mode of conveyance and thereby title, it falls to

reason that when the rights of the Respondent Nos.1 and 2 are

(2011) 11 SCC 648

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

juxtaposed with that of Respondent No.5 as also the comparative

documentary evidence, it is clear that Respondent Nos.1 and 2

have proved their title over the suit property by furnishing

evidence disclosing title of their predecessor in the interest which is

undisputed, hence, mere possession by Respondent No.5 cannot be

the decisive factor. Even though Respondent No.5 may have had

a prior, peaceful, settled possession, Respondent Nos.1 and 2 are

the rightful owners. The foregoing discussion thereby lends a

quietus to the third substantial question raised.

(x) Before concluding it is apposite to notice that in Issue

No.3 the Learned First Appellate Court held that Respondent No.5

had no possessory right over the suit property, it is thus

unfathomable as to how it subsequently opined that the findings of

the Learned Trial Court in Issue Nos.4 and 6 brooks no interference

when the Learned Trial Court had earlier opined that Respondent

No.5 had possessory right. Added to the above, the reasoning of

the Learned First Appellate Court on the issue of maintainability is

also nebulous. Be that as it may, the findings of the Learned Trial

Court on maintainability cannot be sustained as all suits of civil

nature are maintainable under Section 9 of the CPC unless

specifically barred by a particular statute or by implication of law.

16. In the end result, the Judgment and Order of the

Learned First Appellate Court is upheld subject to modifications as

detailed below.

17. The Appeal fails and stands dismissed.

18. It is clarified here that although prayers (i) and (j)

along with prayer (o) to the Plaint were rejected by the Learned

First Appellate Court, rejection of prayers (i) and (j) would lead to

Bishnu Maya Chettri and Another vs. Govind Prasad Pradhan and Others

an absurdity, when the prayer for possession of the suit properties

by Respondent Nos.1 and 2 are granted but the Appellant Nos.1

and 2 are not injuncted from continuing construction on Schedule

'D' land. The Order of the Learned First Appellate Court rejecting

prayers (i) and (j) are accordingly set aside.

19. Pending applications, if any, stand disposed of.

20. No order as to costs.

21. Records of the Learned Courts below be remitted

forthwith.

( Meenakshi Madan Rai ) Judge 06-01-2023

Approved for reporting : Yes

sdl