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2003 DIGILAW 31 (JHR)

RAM DAS SINGH v. SRIMATI DILWASH DEVI

2003-01-06

H.S.PRASAD, VINOD KUMAR GUPTA

body2003
Judgment : HARI SHANKAR PRASAD, J. ( 1 ) THIS appeal under clause 10 of the Letters Patent Appeal, has been filed by one Ram Das Singh, the appellant against the judgment dated 17th of january, 1992 passed by learned Single Judge of this Court in First Appeal No. 225/1989, where by the judgment and decree dated 31. 3. 1989 passed by Sub-Judge, Jamshedpur in Title Suit No. 12/1988 has been affirmed. ( 2 ) THE facts of the case, lie in a very narrow compass. The plaintiff respondent filed a suit for partition claiming half share in the suit property, a house originally belonged to one prasad Kumar Sinha. After the death of Prasad kumar Sinha, his two sons. Balai Kumar Sinha and Dilip Kumar Sinha succeeded over the half of the suit property from eastern side and the western side half into the share of step brothers and sisters of Dilip Kumar Sinha and Balai kumar Sinha. A money suit filed by the present appellant against Balai Kumar Sinha was decreed but the entire eastern half of the suit house was attached and put on auction sale by the Court. The appellant himself purchased the suit property in auction sale and got the possession through Court. Since the undivided share of Dilip Kumar Sinha was also sold in auction sale, he filed an objection being Misc. Case No. 16/1970 in the pending Execution case No. 349/1969, claiming his undivided share with Balai Kumar Sinha. The said Misc. case was disposed of with observation that the undivided share of Dilip Kumar getting favourable order in appeal, Dilip Kumar Sinha sold his share in the property to the present respondent by registered sale-deed dated 30. 5. 1975. The purchaser-respondent filed a petition in the Execution Court praying therein to substitute her in execution case in place of dilip Kumar Sinha. The said prayer was allowed by the Execution Court, against which, the present appellant filed Misc. appeal and after dismissal of appeal, filed a revision against the order of substitution but the revision was also dismissed. Therefore the purchaser-respondent filed petition for restoration of possession and the Court directed to restore the possession in her favour. The present appellant aggrieved by the said order, preferred a miscellaneous appeal in this Court, which was partly allowed with observation on 22. 9. Therefore the purchaser-respondent filed petition for restoration of possession and the Court directed to restore the possession in her favour. The present appellant aggrieved by the said order, preferred a miscellaneous appeal in this Court, which was partly allowed with observation on 22. 9. 1987 that the auction purchaser Ram Das Singh and the purchaser Dilbaso Devi from Dilip Kumar sinha shall be in joint possession of the entire eastern portion of the suit house. If they find any difficulty in joint possession, they may seek relief before appropriate forum for separation of their share. The first phase of litigation ends with this observation because none of the party moved before any higher Court in appeal. However, the purchaser from Dilip Kumar sinha failed to get joint possession even after the direction of the Court and so the second phase of litigation started with the filing of the present suit for partition, by present respondent. The Court below, relying upon the pleadings, the evidence and the findings of the earlier litigation, decree the suit. ( 3 ) THE present appellant, being aggrieved by the judgment and decree of the suit, filed first appeal in this Court and the learned Single judge, after hearing the parties, dismissed the appeal. The appellant, thereafter, filed the present Letter Patent Appeal against the findings of the learned Single Judge. ( 4 ) ASSAILING the impugned judgment as not sustainable, it has been submitted by the learned counsel for the appellant that the honble Single Judge did not construe the law applicable to the facts of the case in proper perspective and has erred in dismissing the appeal of the appellant. Elucidating further, it has been submitted that as per process of the court the entire eastern portion of the suit property was put on auction sale in execution of favour on 1. 2. Elucidating further, it has been submitted that as per process of the court the entire eastern portion of the suit property was put on auction sale in execution of favour on 1. 2. 1973 and since then he is coming in continuous possession over the same and after lapse of statutory period he has perfected his right, title and interest in respect thereof by adverse possession and his title has become indefeasible and right, title and interest whatsoever of Dilip Kumar Sinha and his vendee, the respondent has become totally extinguished and in this view of the matter the plaintiff-respondent has no right, title and interest over the suit property to seek partition in respect thereof in spite of observation of the Honble Judge contained in M. A. No. 56/ 83. It has also been contended that the vendor of respondent had himself participated in the auction sale knowing fully well that the entire eastern portion of the house was already attached and put on auction sale and this aspect of the matter has not at all been considered by the Honble Single Judge and, therefore, the impugned judgment suffers with il-legality and the suit filed by the respondent is liable to be dismissed. It was further submitted that there is no material on record to show that the procedure as laid down under Order XXI, Rule 35 (2), CPC has been followed and the plaintiff-respondent has ever been put in joint possession with the auction purchaser and considering all the facts the suit of the respondent-plaintiff ought to have been dismissed. ( 5 ) THE learned counsel for the plaintiff-respondent has submitted that in the execution of money decree the eastern portion of the house belonging to Balai Kumar Sinha and dilip Kumar Sinha, both being tenant in common, was put on auction sale, which money decree, was only against Balai Kumar, Sinha and the appellant was not vested with any right to put the property of Dilip Kumar Sinha on auction sale after its attachment and the appellant ought to have taken symbolic possession in execution of the decree. Therefore, the auction sale and subsequent delivery of possession pursuant thereto suffers with illegality for the reason that the money decree is not against Dilip Kumar Sinha. Therefore, the auction sale and subsequent delivery of possession pursuant thereto suffers with illegality for the reason that the money decree is not against Dilip Kumar Sinha. It has also been submitted that thereafter Dilip Kumar Sinha agitated his right in respect of the property of his share by filing objection giving rise to Misc. Case No. 16/70, which was allowed in his favour and thereafter there was an order for restitution in his favour of the property illegally auction sold and delivery of possession effected. It has also been submitted that proper course for the favour of Dilip Kumar Sinha does not cast any embargo on his right, title and interest in view of the fact that as per restitution order, he will be deemed to be a tenant in common in respect of the suit house with the appellant and after the execution of the sale in the year 1975, the respondent has stepped into the shoes of vendor Dilip Kumar Sinha and the Honble Judge in M. A. No. 56/83 has rightly observed that both the parties shall be deemed to be in joint possession of the eastern portion of the holding in question. Lastly it has been submitted that right, title and interest of Dilip Kumar Sinha in the suit property does not at all stand affected by the illegal auction sale and the subsequent delivery of possession thereof and the appellant by hook and crook is trying to perpetuate the fruits of the illegality committed by him by filing this LPA. which is fit to be dismissed in any view of the matter ( 6 ) IT is pertinent to mention, at the very out set, that the appellant had obtained a money decree against Balai Kumar Sinha only and in execution of the decree he had got attached the entire eastern portion of the holding in dispute and got it auction sold and ultimately himself became a purchaser in the said auction sale and got the delivery of possession over the entire eastern portion of the holding in his favour. ( 7 ) ADMITTEDLY, in view of the fact of, the case, Balai Kumar Sinha had only interest in the said holding and he was a joint tenant with his full-brother Dilip in respect thereof, there being no partition by metes and bounds between him and his brother Dilip Kumar Sinha. ( 7 ) ADMITTEDLY, in view of the fact of, the case, Balai Kumar Sinha had only interest in the said holding and he was a joint tenant with his full-brother Dilip in respect thereof, there being no partition by metes and bounds between him and his brother Dilip Kumar Sinha. Thereafter the interest of Dilip Kumar Sinha in the said holding remains unaffected and his right was also vindicated in subsequent proceedings, as a result of which order for restitution was made in his favour. The order of restitution has its impact of nullifying the auction sale and delivery of possession pursuant thereto, in respect of the entire holding. In this view of the matter, Dilip Kumar Sinha shall be deemed to be a co-sharer with the appellant in respect of the said holding and principle of perfecting right, title and interest by the appellant, as a result of adverse possession, has no application in the facts and circumstances of the case and his interest or share whatsoever it may be, remained unaffected. Further no case for adverse possession is made out because from the time of auction sale Dilip kumar Sinha and possession of defendant-appellant can not be said to be uninterrupted without disturbance and peaceful throughout the period till the filing of the partition suit and, therefore, the appellant has got no case. Further no such pleading of perfection of right, title and interest by adverse possession was taken in the written statement and the appellant had not led any evidence in this regard and, therefore, all such fact claiming of his right, title and interest over the entire eastern house by adverse possession does not arise at all. Hence, in such a situation, the only remedy with Dilip Kumar Sinha or his subsequent purchaser, the respondent, is to seek partition of the suit holding as per her share. ( 8 ) LEARNED counsel for the appellant had taken the shelter of Order XXI, Rule 35 (2),cpc and has submitted that there is no material on record to show that procedure as laid down under the provisions, referred to above, has been followed and as such, it cannot be said that plaintiff-respondent or her vendor has been put in joint possession with the appellant-defendant/auction purchaser of the suit property in question. This provision under order XXI, Rule 35 (2), CPC is applied where there is a decree of a competent Court for delivery of any specified immovable property. In the instant case, admittedly, appellant had obtained a money decree against Balai Kumar sinha only and got the entire eastern half of the holding attached and auction sold and himself became auction purchaser and delivery of possession effected in his favour with respect thereof, but the appellant had obtained money decree against Balai Kumar Sinha only and property in question, in respect of which delivery of possession was effected in his favour, belonged jointly to Balai Kumar Sinha and Dilip kumar Sinha and this fact was known to the appellant from very beginning but he surreptiously and illegally got the entire eastern half of the holding attached and auction sold and he himself became the auction purchaser. The appellant should have himself followed the procedure of Order XXI, Rule 35 (2), cpc as the property in question also belonged to Dilip Kumar Sinha and he had interest in the property to the extent of half of the holding, but appellant instead of himself following the procedure of Order XXI, Rule 35 (2 ). CPC got delivery of possession over entire eastern half of the holding. There is no point in this argument of the learned counsel. ( 9 ) AS discussed above at para 7 the only remedy with Dilip Kumar Sinha or of the subsequent purchaser was to seek partition of the suit holding as per his/her share and the trial court and first appellate Court has rightly decreed the suit in favour of the respondent. ( 10 ) THERE is no illegality in the impugned judgment and it requires no interference. ( 11 ) IN the result, there is no merit in this appeal, which is accordingly dismissed. Appeal dismissed. --- *** --- .