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2002 DIGILAW 1114 (PAT)

Dhirendra Singh v. Priyambada Lall

2002-10-10

ASHOK KUMAR VERMA

body2002
Judgment Ashok Kumar Verma, J. 1. The Plaintiff-Appellants have filed this appeal against the Judgment and Decree passed in Title Appeal No. 66 of 1982 by the Additional District Judge III, Bhagalpur, whereby the learned Additional District Judge has allowed the Title Appeal and set aside the judgment and decree passed in Title Suit No. 64 of 1977 by the Additional Munsif, Bhagalpur.The Plaintiffs had filed theTitle Suit for declaration of title and recovery of possession over the suit land, which had been decreed by the learned Additional Munsif. 2. According to the Appellants, the judgment and decree passed by the learned Additional District Judge is bad in law. 3. The following substantial questions of law had been formulated in this Second Appeal : (i) Whether in view of the fact that the defendants-respondents entered into forcible possession of the disputed land, the provisions for restitution under the Code of Civil Procedure are applicable? and, (ii) Whether the court below erred in law in holding that the suit is not maintainable? 4. In short the case of the Plaintiffs-Appellants is that one Late Kunj Bihari Singh, father of plaintiff nos. 1 to 3 and grandfather of plaintiff nos. 4 and 7 and the plaintiffs were members of joint Hindu family governed by Mitakshra School of Hindu Law and Kunj Bihari Singh was Karta. The defendant no. 5, Smt. Prembada Lai had filed title Suit No. 98-of 1967 in the Court of Munsif II, Bhagalpur in the capacity of representative of the joint family of the defendants against Kunj Bihari Singh and the plaintiff no. 1, Dhirendra Singh for declaration of title and confirmation of possession and in the alternative for recovery of possession in respect of 6 dhurs of land. That title suit had been contested by the plaintiff no. 1 denying the title and possession of the defendant on the ground that Kunj Bihari Singh was a man of weak mind and was almost an idiot and was adicted to Ganja and the sale deed dated 7.10.1964 was a got up document. The suit land was never transferred and its possession was never delivered to the defendant. 1 denying the title and possession of the defendant on the ground that Kunj Bihari Singh was a man of weak mind and was almost an idiot and was adicted to Ganja and the sale deed dated 7.10.1964 was a got up document. The suit land was never transferred and its possession was never delivered to the defendant. Earlier Title Suit No. 98 of 1967 was decreed by the Munsif II on 31.7.1972 and against that judgment and decree Title Appeal No. 43 of 1972 had been filed and the judgment and decree of Title Suit was set aside in the said Title Appeal by the Additional Sub-Judge IV, Bhagalpur. In August, 1972 the defendant dispossessed the plaintiff from the suit land and they are continuing in possession over it. 5. A written statement had been filed on behalf of defendants 1, 2 and 5 in the Title Suit and according to these defendants the suit is barred by law of adverse possession, limitation, waiver and acquiescence and the suit as framed is not maintainable. It is barred by the Principles of res judicata. These defendants have admitted in the written statement that defendant no. 5 had filed Title Suit No. 98 of 1967 for 6 dhurs of land which had been sold by Kunj Bihari Singh, father of plaintiff no. 1 to the plaintiff of Title Suit No. 98 of 1967 by executing an unregistered sale deed dated 7.10.1964. The bounderies of the suit land given in the plaint does not tally with the boundaries of the suit land of Title Suit No. 98 of 1967. The defendant no. 5 has been continuing in peaceful possession over the suit land since the date of her purchase in 1964 and has constructed pucca house on it. The defendants did not dispossess the plaintiffs from the suit land in August 1972. According to the defendants, the plaintiffs are not entitled to any relief. 6. The defendant no. 5 has been continuing in peaceful possession over the suit land since the date of her purchase in 1964 and has constructed pucca house on it. The defendants did not dispossess the plaintiffs from the suit land in August 1972. According to the defendants, the plaintiffs are not entitled to any relief. 6. It was submitted by the learned lawyer for the Appellants that the earlier Title Suit No. 98 of 1967 filed by Smt. Prembada Lal had been decreed by the learned Munsif II, Bhagalpur and Title Appeal No. 43 of 1972, which had been filed against the judgment and decree of that Title Suit was allowed by the Additional Subordinate Judge IV, Bhagalpur and the judgment and decree passed in that Title Suit was set aside and no appeal was filed against the judgment and decree of that Title Appeal. It was also submitted by him that there is no question of restitution as ordered by the Lower Appellate Court. It was contended by the learned lawyer for the Appellants that the Lower Appellate Court has not dealt with the findings of the Title Suit and has disposed of the Title Appeal only giving a finding on the point of restitution. 7. It was submitted by the learned lawyer for the respondents that the plaintiffs appellants had got the judgment of Title Appeal No. 43 of 1972 exhibited in the Title Suit, which is Ext. 2 but the judgment of Title Suit No. 98 of 1967 was not brought on record by them. The contention of the learned lawyer for the Appellants was that the Lower Appellate Court has not considered the evidence and the findings of the Title Suit. It has been held by the Patna High Court in the case of Narain Singh and others V/s. Kanta Singh and others, reported in A.I.R. 1985 Patna 214 that the First Appellate Court must consider the evidence and reasonings of trial court especially in case of reversal. 8. It appears from the record that the learned Additional District Judge in his judgment passed in Title Appeal No. 66 of 1982 has referred to the pleadings of the parties and the submissions made by the learned counsel of the parties. 8. It appears from the record that the learned Additional District Judge in his judgment passed in Title Appeal No. 66 of 1982 has referred to the pleadings of the parties and the submissions made by the learned counsel of the parties. The learned Additional District Judge has mentioned in his judgment passed in Title Appeal No. 66 of 1982 that taking into account that the plaintiffs would have secured the reliefs sought for in the suit merely by filing a petition for restitution under Section 144 C.P.C. and the suit is hit by Sub-section (2) of Section 144 C.P.C. and it is needless to discuss and examine both oral and documentary evidence adduced by the parties in support of their respective claims of right, title, interest and possession over the suit land. The learned Munsif in his judgment passed in Title Suit No. 64 of 1977 has mentioned that the defendant has argued that the principle of res judicata is involved and the suit is barred but in this case no principle of res judicata is involved. The Lower Appellate Court has not discussed the oral and documentary evidence adduced by the parties to the suit. The Lower Appellate Court has also not considered the finding given by the learned Munsif on the plea of res judicata. The learned Additional District Judge has also mentioned in his judgment that if Schedule I properties of the plaint are compared with the details of Schedule I properties of the plaint of Title Suit No. 98 of 1-967 as given in the decree prepared in the said suit (Ext. 1) it would appear that barring the eastern and western boundaries of the said land, there is absolutely no difference between the two lands. The learned Additional District Judge has not considered the evidence adduced by both the parties in the trial court in his judgment passed in Title Appeal No. 66 of 1982. 9. In the facts and circumstances of the case, the judgment and decree passed by the learned Additional District Judge in Title Appeal No. 66 of 1982 is not tenable in law. Therefore, this Appeal is allowed and the judgment and decree passed by the learned Additional District Judge in Title Appeal No. 66 of 1982 is set aside. 9. In the facts and circumstances of the case, the judgment and decree passed by the learned Additional District Judge in Title Appeal No. 66 of 1982 is not tenable in law. Therefore, this Appeal is allowed and the judgment and decree passed by the learned Additional District Judge in Title Appeal No. 66 of 1982 is set aside. The case is remanded to the court below to dispose of the Title Appeal in accordance with law after considering the evidence adduced by both the parties in the trial court and the reasonings of the trial court, after giving opportunity of hearing to both the parties. Both the parties are directed to appear before the court below within three months from today. The court below will not give any unnecessary adjournment to any of the parties.