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2006 DIGILAW 628 (PAT)

Abhi Manuyu Tripathy v. Shambhu Ojha

2006-07-25

J.N.BHATT, R.N.PRASAD

body2006
Judgment J.N.Bhatt and R.N.Prasad JJ. 1. The Letters Patent Appeal has been filed by the appellants against the judgment and decree dated 9th of May, 1991 passed in F.A. No. 149/94, whereby ihe appeal has been dismissed and the judgment and decree dated 22.12.1973 passed by the 4th Subordinate Judge, Ara in Title Suit No. 72/69/25/72 dismissing the suit has been affirmed. 2. The appellants were plaintiffs in the suit. They filed the abovementioned suit for declaration of title, confirmation of possession and in alternative for recovery of possession with respect to about 9 acres of land described in schedule lll of the plaint stating therein that their ancestor Sukhraj Ojha was separate from his brothers. He had two sons, Bandan Ojha and Sheo Gulam Ojha. Sheo Gulam Ojha died in state of jointness with his brother Bandan Ojha. His wife also died in state of jointness with Bandan Ojha issueless. Bandan Ojha also died in state of jointness with his sons Babli Ojha and Maheshwar Ojha. Maheshwar Ojha also died issueless. His wife died prior to him and Babli Ojha died before cadastral survey leaving behind his widow Deokalo Kuer and daughter Manturna Devi. His widow Deokalo came in exclusive possession of entire property left by Babli and her name was also entered in the survey record. The sons of Manturna Devi filed the abovementioned suit for declaration as stated above. Deokalo also executed a deed of gift on 7.12.1957 in favour of the plaintiffs with respect to the lands given in schedule I of the plaint and the plaintiffs came in possession of the same. The properties mentioned in schedule II of the plaint are coming in possession of Bandan Ojha in whose favour Most. Deokalo Kuer had executed Rehan deed. Deokalo Kuer was in possession though the Rehandar. The Hindu Succession Act, 1956 came into force and Deokalo acquired permanent right and title over the disputed land has also disposed of properties and, as such, she also executed deed of gift in favour of the plaintiff-appellants whose names have been recorded in the serista of the State of Bihar as well as survey records. They are paying the rent, Deokalo had no issue except the plaintiffs. The plaintiffs and their mother were living with Deokalo even before the execution of the deed of gift. The defendants-first party had no concern with the properties of Most. Deokalo Kuer. They are paying the rent, Deokalo had no issue except the plaintiffs. The plaintiffs and their mother were living with Deokalo even before the execution of the deed of gift. The defendants-first party had no concern with the properties of Most. Deokalo Kuer. The defendants, however, started unnecessary trouble and initiated 144 Cr.P.C. proceeding and the same was converted into one under section 145 Cr. P.C. The said proceeding was decided on 14.9.1969 against the plaintiff-appellants with respect to the lands in question mentioned in schedule III of the plaint. By virtue of the order passed in 145 Cr. RC. proceeding the defendants tried to interfere with the possession of the plaintiffs which had necessitated the filing of the suit. 3. A written statement was filed on behalf of defendants 1st set disputing the genealogy given by the plaintiffs and stating that one Duniya Ojha had three sons, Tila Ojha, Ramnath Ojha and Sukhraj Ojha. Tilak Ojha had a son Lutan Ojha, who died issueless. Ramnath Ojha had a son Sheo Sharan Ojha, who had a son Nathuni Ojha. Nathuni Ojha had two sons, Shiv Darshan Ojha and Gopal Ojha. Shiv Darshan Ojha had two sons, Shambhu Ojha and Bhutali Ojha, defendant nos. 1 and 2 respectively. Gopal Ojha had a son Yogendra Ojha, who is defendant no. 3, Sukhraj Ojha had a son Bandhan Ojha, Bandhan Ojha had two sons, Babli Ojha and Maheshwar Ojha, Maheshwar Ojha died issueless in jointness, Babli Ojha died before cadastral survey leaving behind his widow Deokalo Kuer, Sukhraj Ojha was not separate from his brothers. Babli Ojha died in state of jointness with Nathuni Ojha leaving behind his widow Deokalo Kuer. Nathuni Ojha came in possession of the entire joint family property as Deokalo Kuer had no interest other than the maintenance. Her name was entered in the survey record of rights for her consolation as she became widow at a very tender age. Nathuni Ojha continued to be in possession. No interest accrued to Deokalo Kuer under the Hindu Succession Act, she had no right to execute any deed of gift in favour of the plaintiffs. Mantuma Devi was not a daughter of Deokalo Kuer rather she was daughter of her sister. Nathuni Ojha continued to be in possession. No interest accrued to Deokalo Kuer under the Hindu Succession Act, she had no right to execute any deed of gift in favour of the plaintiffs. Mantuma Devi was not a daughter of Deokalo Kuer rather she was daughter of her sister. They were in possession of the disputed land for several 12 years openly, adversely and to the knowledge of the plaintiffs and Deokalo Kuer and, as such, they had perfected their title by adverse possession. 4. Deokalo Kuer, defendant no. 5 filed separate written statement supporting the case of the plaintiffs. 5. The trial court held that Manturna Devi is daughter of Deokalo Kuer and the plaintiffs are Natis of Deokalo. Babuli Ojha, husband of Deokalo died in state of separation from Nathuni Ojha in the year 1905. Deokalo Kuer was not legally entitled to maintenance. Her name was recorded in the records of rights only for consolation. The Rehan bonds executed by Babuli Ojha, Lutan Ojha and Jageshwar Ojha were redeemed by the ancestors of the contesting defendants. Most. Deokalo or her donees cannot recover possession as their right of recovery was lost under section 127 of the Limitation Act. The donees right of redemption became time barred. The Rehan bonds executed by Babli Ojha in favour of Dighraj and Lutan, ancestors of the contesting defendants, the learned trial court held that the Rehan money was never paid to Lutan and Dighraj and their heirs continued to be in possession. It was also held that Deokalo was a pardanashin lady. She had no means of cultivation. The ancestors of the contesting defendants were coming in physical possession over the suit land since long and acquired title by virtue of adverse possession for more than twelve years over the suit land. 6. The plaintiff-appellants preferred appeal against the judgment and decree of the trial court and the appellate court dismissed the appeal and upheld the judgment and decree of the trial court. 7. The submission of the learned counsel for the appellants was that the name of Deokalo Kuer, widow of Babuli Ojha was entered in the records of rights and she executed Rehan deeds in favour of different persons but those documents were not considered by the courts below. 7. The submission of the learned counsel for the appellants was that the name of Deokalo Kuer, widow of Babuli Ojha was entered in the records of rights and she executed Rehan deeds in favour of different persons but those documents were not considered by the courts below. In this regard it would not be out of place to mention here that the trial court has considered the documents filed on behalf of the parties and has discussed the same. It has also been mentioned that Exhibits 12 series are khatians of different mauzas and Ext. 12(R) is certified copy of Khatian. In the tenants column the name of Most. Deokalo Kuer is recorded alongwith Lutan and Nathun. The name of mortgagee has also been mentioned. The trial court has discussed the documents separately and has come to a conclusion that the name of Deokalo was mentioned in the records of rights with Lutan and Nathun. Some Rehan deeds were executed by Deokalo Kuer i.e. Ext. 5 series. Some of them was redeemed and some are still in possession of the mortgagee. The Rehan deeds were redeemed by the ancestors of the contesting defendants, which is evident from the endorsement over the Rehan deeds, Ext. B series. The contesting defendants are also in possession of those deeds and they filed those deeds to show that they redeemed the mortgage and are in possession of the same. Deokalo was never in possession and her name was recorded in the records of right only for her consolation as she became widow at an early age. The rent receipts were also filed and the court below has dealt with the same and has stated that it appears from the rent receipts that the amount under receipts was paid by different persons and not by Deokalo Kuer and considering the documents filed by the plaintiff-appellants came to the conclusion that though name of Deokalo was recorded in the records of right alongwith Nathuni and Lutan but she was never in possession. Her husband Babli died in 1905 and as such she had no legal right of maintenance. It was only for her consolation as she became widow at an early age. Her husband Babli died in 1905 and as such she had no legal right of maintenance. It was only for her consolation as she became widow at an early age. In the proceeding under section 145 Cr.P.C. also the heirs of Deokalo were not found in possession over the land in question and the contesting defendants had succeeded in proving their case that they acquired title by virtue of adverse possession as they were in possession continuously to the knowledge of Deokalo Kuer and the plaintiffs for several twelve years. The trial court has discussed each and every document separately and, as such, this court is not required to deal with each and every document again separately. The appellate court has also considered the submissions of the counsel for the appellant and discussed the same in details and has come to a conclusion that there is nothing wrong in the findings recorded by the trial court and dismissed the appeal. 8. Learned counsel for the appellants also submitted that the court below has committed error in holding that the contesting defendants/respondents failed to make out a case of adverse possession. In this regard it is pertinent to mention herein that in the written statement itself plea of adverse possession was taken.The trial court also dealt the case of the contesting defendants and stated that it was the case of the contesting defendants that their ancestors are coming in possession of the suit land since more than twelve years openly and adversely to the knowledge of the plaintiffs and Most. Deokalo Kuer and they have acquired title by adverse possession. While dealing with this question the trial court has also considered the documentary and oral evidence of the parties. With respect to documentary evidence discussion has already been made but the learned counsel for the appellants did not make any comment with respect to oral evidence. It appears that the trial court has considered the evidence of the relevant witnesses in details and has come to a conclusion that the defendants have succeeded in proving its case of title by adverse possession. The appellate court also considered the aforesaid aspect of the matter and has affirmed the findings of the trial court. 9. On. consideration we also do not find any reason to differ with the findings recorded by the trial court as well as appellate court. The appellate court also considered the aforesaid aspect of the matter and has affirmed the findings of the trial court. 9. On. consideration we also do not find any reason to differ with the findings recorded by the trial court as well as appellate court. No other point was raised. Thus, on consideration we find no merit in this Letters Patent Appeal. It is accordingly dismissed. No cost.