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2001 DIGILAW 652 (JHR)

Ajlati Devi v. Shakuntala Devi

2001-09-11

GURUSHARAN SHARMA

body2001
Judgment Gurusharan Sharma, J.-In this appeal, dispute relates to 7 decimals land of plot No. 318 with house thereon situated at Garhwa town. 2. Admittedly, plot No. 318 belonged to one Jai Narain Pathak, who had two sons, Gobardhan Pathak and Janki Pathak. Janki Pathak died leaving behind his son, Nageshwar Pathak alias Bitan Pathak. Some time in the year 1929, there was a partition between Gobardhan Pathak and Nageshwar Pathak, wherein Southern half of the house standing over plot No. 318 was allotted to Nageshwar Pathak and Northern half thereof to Gobardhan Pathak, who died leaving behind three sons, Bindeshwar Pathak, Maheshwar Pathak and Jagdishwar Pathak, Nageshwar Pathak died issueless in the year 1930, leaving behind his widow Gopi Kuer. 3. One Jaigobind Mishra filed Money Suit No. 251 of 1937 against said Gopi Kuer and obtained a decree. In lieu thereof her house standing over plot No. 318 was auction-sold and purchased by the decree-holder, vide Execution Case No. 382 of 1939. She filed application under Order 21 rule 90 of the Code of Civil Procedure, which was rejected. She also filed Title Suit No. 88 of 1943 for declaration of title and recovery of possession of the said house and another Title Suit No. 103 of 1947 on behalf of Thakurjee challenging the said auction sale, but lost both the suits. 4. After death of Jaigobind Mishra in the year 1950 his both sons, Deobans Mishra and Tapeshwar Mishra sold the property in question to Maheshwar Pathak, aforesaid. 5. Jagdishwar Pathak filed Partition Suit No. 104 of 1953 against his brother, Maheshwar Pathak, wherein Arbitrator was appointed and on the basis of his Award (Exhibit F/4) final decree (Exhibit H) was passed on 8.8.1958, wherein property in question was allotted to Maheshwar Pathak. He obtained delivery possession (Exhibit G/1) thereof through processes of court some time in the year 1960, vide Execution Case No. 146 of 1959. 6. In the meantime, plaintiff-Rajeshwar Thakur, who was admittedly in occupation of the house in question as tenant, claimed to have purchased it by registered sale deed dated 3.7.1956 (Exhibit 1) from Gopi Kuer. 7. Maheshwar Pathak had filed SCC Suit No. 53/27 of 1956 against Rajeshwar Thakur and had obtained rent decree against him. However, plaintiff claimed that before purchase he was inducted as tenant by Gopi Kuer. 8. 7. Maheshwar Pathak had filed SCC Suit No. 53/27 of 1956 against Rajeshwar Thakur and had obtained rent decree against him. However, plaintiff claimed that before purchase he was inducted as tenant by Gopi Kuer. 8. Rajeshwar Thakur filed application under Order 21 rule 100 read with section 151 of the Code challenging delivery of possession in favour of Maheshwar Pathak. It was registered as Misc. Case. No. 86 of 1960 and was allowed on 4.7.1961. It was held that said delivery of possession was illegal. Against that Maheshwar Pathak preferred Misc. Appeal No.6 of 1961 before the District Judge, which was allowed on 11.1.1963 (Exhibit F/1) and order dated 4.7.1961 was set aside and delivery of possession was held to be valid. An appeal filed against the said order in this Court was dismissed, vide Exhibit F. 9. A proceeding under section 145 of the Code of Criminal Procedure was also started, vide Misc. Case No. 253 of 1961 between the parties, wherein final order dated 30th August, 1972 was passed against the plaintiff and in favour of Maheshwar Pathak. 10. The present suit was filed on 28.4.1975. It was dismissed on 12.3.1984, holding that Gopi Kuer had neither title nor possession on 3.7.1956, when she executed the sale deed (Exhibit 1) in favour of the plaintiff. Accordingly, plaintiff did not acquire title and possession by virtue of Exhibit 1. 11. The plaintiff preferred appeal, which was dismissed by impugned judgment and decree dated 18.10.1985 and the trial court's decree was affirmed. 12. Mr. N.K. Prasad, senior Counsel appearing on behalf of the appellants, submitted that the suit was not hit by section 34 of the Specific Relief Act for the reason that the plaintiff failed to prove• adverse possession. 13. In the present suit, plaintiff had not sought relief for recovery of possession. It was found that he was not in possession of the suit house at the time of filing of the suit. It was also established that during pendency of the suit, some time in April, 1981, he had forcibly dispossessed the defendant, who was a widow. Her husband Maheshwar Pathak had died during pendency of the suit on 18.11.1975 and she was substituted in his place. 14. In such circumstance, courts below rightly held that suit was hit by section 34 of the Specific Relief Act. 15. Her husband Maheshwar Pathak had died during pendency of the suit on 18.11.1975 and she was substituted in his place. 14. In such circumstance, courts below rightly held that suit was hit by section 34 of the Specific Relief Act. 15. It was further submitted that the courts below wrongly excluded exhibits, i.e. the sale deeds, which were executed during pendency of the lis, on the ground that those deeds were hit by lis-pendens and non-consideration thereof resulted into-mis-carriage of justice. 16. Mr. Prasad made reference of the sale deed dated 12.11.1980 (Exhibit 1/b) executed by Nagbanshi Kuar in favour of Gurmit Singh and others. A perusal of said deed shows that she admitted transfer of suit property by Gopi Kuer to the plaintiff in 1956. From this admission, it cannot be said that she had accepted the said transfer to be valid. She was herself contesting the present suit at the relevant time. 17. Another sale deed (Exhibit 1/a) was executed some time in November, 1980, by Gopal Pathak and Rampati Devi in favour of Ramkishun Prasad Keshri, wherein plaintiff was shown in Southern boundary indicating that suit house was in his possession. 18. In paragraph-42 of the impugned judgment court of appeal below considered both, Exhibits 1/a and 1/b and held that contents of Exhibits 1/a, which was a document between strangers will not bind the parties to the present suit and regarding Exhibit 1/b, it was observed that defendant had merely given a statement of fact that Gopi Kuer had sold the suit property to the plaintiff and nothing more and over and above those findings, court of appeal below also observed those documents to be hit by principle of lis-pendens. 19. I, therefore, find no reason to interfere with the impugned judgments and decrees passed by the two courts below. This Second Appeal is concluded by concurrent findings of fact. 20. In the result, this appeal is dismissed, but without costs. Lower court records may be sent down immediately.