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2001 DIGILAW 615 (JHR)

Etwari Pandit v. Teklal Baitha

2001-08-30

GURUSHARAN SHARMA

body2001
Judgment Gurusharan Sharma, J.-Plaintiff is appellant. Subject matter of dispute in the present appeal is one acre of land from south, out of total 3.53 acres land of plot no. 767, situated in Village-Bhandaro, District-Giridih, detailed in Schedule A to the plaint which, plaintiff claimed to have obtained from Sewa Rai and Anandi Rai, both sons of Todi Rai in Dar-raiyati by registered sale deed dated 6.1.1964 and grown bamboos and Kathal Trees and plants thereon and cultivated the same for about 35 years adversely, openly and continuously to the knowledge of defendants and all concerned without any objection by anybody and as such acquired title by adverse possession over the said land. Rooms, varanda etc. have been constructed thereon by the plaintiff and a well has also been dug. 2. Defendants claimed to have purchased 1.96 acres land of plont No. 767 from Titoo Rai. According to plaintiff, neither Mostt. Sibia or her husband, Titoo Rai had any interest in the lands of plot No. 767. On 27.6.1973 defendants cut away 50 bamboos from the suitland. 3. There was a proceeding under section 145 of the Code of Criminal Procedure between Titoo Rai and Lekho Dhobi, father of defendants 2 and 3 on the one hand and plaintiff's vendors on the other in respect of entire 3.53 acres of plot No. 767 along with other lands, which by final order dated 15.5.1957 was decided in favour of Titoo Rai and Lekho Dhobi and their possession was declared thereon. Sewa Rai and Anandi Rai did into file any civil suit within the period of limitation as prescribed under Article 47 of the Limitation Act, 1908 (hereinafter referred to as 'the Act'), i.e. within three years from the date of the aforesaid final order passed in 145 proceeding. Hence, after expiry of said period their right to recover possession of the lands concerned from Titoo Rai and others was extinguished under the provisions of the Section 28 of the said Act. 4. Plaintiff's vendors also did not take any step under Section 145(4) of the Criminal Procedure Code. 5. By registered sale deed dated 12.2.1960, Titoo Rai and others transferred 1.96 acres of plot No. 767 to the defendants. 6. Defendants filed a petition in the suit to hear the parties on the question of limitation first. 4. Plaintiff's vendors also did not take any step under Section 145(4) of the Criminal Procedure Code. 5. By registered sale deed dated 12.2.1960, Titoo Rai and others transferred 1.96 acres of plot No. 767 to the defendants. 6. Defendants filed a petition in the suit to hear the parties on the question of limitation first. Trial court by order dated 21.11.1979 rejected their prayer on the ground that as issue of possession was also involved along with issue of limitation, it can't be decided as preliminary issue. 7. Defendants preferred Civil Revision No. 379 of 1979(R) in this Court, which was allowed by order dated 21.11.1982 and trial court was directed to consider the question whether suit was barred by limitation, under Article 47 of the Act, as preliminary issue. 8. By order dated 10.1.1984 suit was dismissed as barred by limitation. It was held that proceeding under Section 145 of the Code was decided on contest in favour of Titoo Rai and others and their posses sion over entire lands of Plot No. 767 including the suit land was declared or 15.5.1957 and thereafter second parties Sewa Rai and Anandi Rai, the plaintiff's vendors did not file any civil suit and present suit was filed by plaintiff as purchaser of the suit land from them, which was clearly barred by time. 9. Plaintiff's contention that present suit was governed by Article 142 of the Limitation Act was not tenable. Admittedly, vendors of both plaintiff and defendants were parties to the said proceeding under Section 145 of the Code and after having lost the said proceeding plaintiff did not file a suit for declaration within a period of three years from the date of final order under Section 145, so the courts below rightly held that plaintiff's suit as barred by time. 10. First appellate court also observed that even if the plaintiff's argument that the suit was to be governed under Article 142 of the Act and it could have been filed within 12 years from 15.5.1957, when final order under Section 145 was passed, is accepted, the said period was also over by the end of May, 1969, whereas the present suit was filed in 1977. 12. I find no reason to interfere with the impugned judgments. There is no merit in this Second Appeal. It is, accordingly, dismissed, but without costs. 12. I find no reason to interfere with the impugned judgments. There is no merit in this Second Appeal. It is, accordingly, dismissed, but without costs. Let the lower court records be sent down.