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2006 DIGILAW 478 (JHR)

SAFIRAN BIBI ALIAS SAFIRAM v. MANAGER MIRZA

2006-04-26

N.N.TIWARI

body2006
Judgment : ( 1 ) HEARD learned counsel for the appellant. ( 2 ) THIS appeal has been preferred against the judgment and decree dated 27th November, 2002 passed in Title Appeal no. 49 of 1987/57 of 2002 whereby the appeal has been allowed in part. The plaintiff-respondent filed Title Suit No. 89 of 1985 in the court of the Munsif, Giridih seeking relief for declaration of right, title and possession and declaring that the sale deed executed by the plaintiff, namely, Rasool Mirza in the year 1957 is a fabricated document. The plaintiff also prayed for confirmation of possession or alternatively for recovery of possession. The plaintiffs case was that the land of Khata No. 69 of Village Sigdardih, P. S. and district Giridih was recorded in the name of johan Mirza. After his death his son Rasool mirza came in possession of the suit land. The defendant falsely claimed that Rasool mian has transferred the land of Khata No. 69, Plot No. 274 in his favour in 1953. Though Rasool Mirza never executed any sale deed and any such deed must be forged and fabricated. The Circle Officer, after due inquiry, had rejected the defendants application for mutation, but the D. C. L. R. contrary to the record, allowed the mutation in favour of the defendant by his order dated 15-7-1985 which gave rise to the cause of action for the suit. ( 3 ) THE defendant admitted that the suit land belonged to the ancestor of the plaintiff and the defendant No. 1 and father of defendant Nos. 2 to 4 had purchased 0. 34 acres of land out of 0. 77 acres of Plot No. 274 from Rasool Mirza, the father of the plaintiff by virtue of registered sale deed dated 9-5-1993 and since then they have been in possession and they also got their land mutated in the office of Anchal Adhikari and have been paying rent and getting receipts regularly. It was stated that there was mistake in plot number and as such an application was filed for correction of the mistake in the register that was also allowed. It was stated that there was mistake in plot number and as such an application was filed for correction of the mistake in the register that was also allowed. The defendant have claimed that they have constructed a house as far back as in the year 1955 and they have also raised compound wall and dug a well on a portion of the suit land and they have been in possession of the same continuously to the knowledge of the plaintiff. ( 4 ) BOTH the parties adduced their evidences. The Trial Court considered the evidences on record and came to the finding that the suit is barred by limitation and adverse possession and that the sale deed exhibit-B is a genuine document and the same has created valid title in favour of the defendant. Learned Trial Court dismissed the suit. The plaintiff then filed appeal in the Court of District Judge, Giridih which was registered as Title Appeal No. 49 of 1987. The said appeal has been finally heard and decided by the 6 Additional District judge, Giridih by the impugned judgment and decree/the Lower Appellate Court, on thorough consideration of the oral and documentary evidences and on close scrutiny of exhibit-b came to the finding that the exhibit-b is not a genuine document and the same has not conferred any title on the defendant. The Trial Court could not properly read the Kaithi language in which the deed was executed and the finding was erroneously recorded in the name of Rasool Mirza who is a different person and is the son of dwari Mirza whereas the land belonged to jahan Mirza. Learned Lower Appellate Court noticed discrepancy in the name of the father of the said Rasool Mirza who inherited the land from his father Jahan Mirza. There is no explanation in the deed as to the said difference in the name of the father. Learned Lower Appellate Court noticed discrepancy in the name of the father of the said Rasool Mirza who inherited the land from his father Jahan Mirza. There is no explanation in the deed as to the said difference in the name of the father. Though on the basis of consideration of other facts and circumstances learned Trial Court has set aside the finding on that issue and held that Exhibit-b was not a valid and genuine document and has not conferred any title to the defendant, yet on the question of possession, the Lower Appellate Court agreed with the finding of the Trial Court that the defendant has been in continuous exclusive possession of the house and the land within the boundary walls and has held that the plaintiff was not entitled to recover possession of the said house and land within the boundary as title by adverse possession accrued to the defendant and the suit is barred by Section 27 of the Limitation Act. The lower Appellate Court, accordingly, allowed the appeal in part while reversing the Trial courts finding on the sale deed Exhibit-b. ( 5 ) MR. S. K. Ughal, learned counsel appearing for the appellants, submitted that if the suit was dismissed on the ground of adverse possession of the defendant so far as the house and land within the boundary is concerned, the learned Lower Appellate court should have dismissed the whole suit and should not have partially allowed the appeal. Learned counsel submitted that reason assigned for reversing the finding of learned Trial Court on the issue of genuineness of the sale deed - Exhibit-b is not sound and valid and the judgment and decree of the Lower Appellate Court is not sustainable. ( 6 ) AFTER hearing learned counsel for the appellants and perusing the judgment and decree of the Lower Appellate Court. I find that the Lower Appellate Court, on due scrutiny and appraisal of the evidence on record, particularly, on dose consideration of the contents of the Exhibit-b has come to the finding that the name of the father of Rasool mirza is different and Rasool Mirza to whom actually the suit land belonged had not executed the said sale deed and Exhibit-b has not conferred any right, title on the defendant. However, learned Lower Appellate court has come to the finding that the plaintiff was not able to prove his possession of the house and the land within the boundary, which was found in favour of the defendant for more than statutory period and in view of the provision of Section 27 of the limitation Act has given the said benefit to the defendant and has affirmed the finding of learned Trial Court on the issue of limitation and adverse possession. ( 7 ) I find no error/illegality in the judgment and decree of learned Lower Appellate court, giving rise to any substantial question of law to be framed and decided in this second Appeal. Accordingly, this appeal is dismissed. Appeal dismissed. --- *** --- .