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2010 DIGILAW 1128 (PAT)

Lakhan Sao v. Parwati Devi

2010-05-05

DIPAK MISRA, MIHIR KUMAR JHA

body2010
JUDGEMENT Dipak Misra, J. 1. The present appeal has been preferred under Section 100 of the Code of Civil Procedure against the judgment and decree dated 20th September, 1986 passed by the learned District Judge, Nawada in Title Appeal No. 51 of 86/4 of 85, whereby he has reversed the judgment and decree dated 22nd December,1984 passed by the learned Subordinate Judge, Nawada in Title Suit No. 95/78. 2. The plaintiff initiated a civil action for declaration of right, title and interest in respect of certain property which was described in Schedule-IV to the plaint. The case of the plaintiff before the Trial Court was that one Chaman Teli had three sons, namely, Meghu Sao, Khero Sao and Chamari Sao. All of them died during lifetime of their father. Meghu Sao died issueless. Khero Sao died leaving behind two sons, namely, Sanichar Sao and Nunu Sao. Subsequently, Nunu Sao and his wife died issueless. Chamari Sao left behind three sons, namely, Jagu Sao, Parsadi Sao and Bihari Sao. After the death of Chamari Sao his widow settled at Village- Barakar with three sons, namely, Jagu Sao, Parsadi Sao and Bihari Sao. Chaman Teli had some lands situate in Village- Sirodawar and Balia, which were recorded in his name in the last survey recorded under Khata No. 10 of Village-Sirodawar and Khata Nos. 11 and 12 of Village- Balia. Prior to vesting of estates Khangi Batwara took place in respect of the said ancestral lands between Sanichar Sao and Nunu Sao, the two sons of Khero Sao on the one hand and Jagu Sao, Parsadi Sao and Bihari Sao, the three sons of Chamari Sao on the other. After the death of Nunu Sao, Sanichar Sao became owner of the entire land. He also acquired some land in settlement. Sanichar Sao had five daughters but no male issue. Plaintiff is the son of his eldest daughter. The father of the plaintiff lived as live-in son-in-law. Sanichar Sao died before vesting of the estate leaving his widow Paro Telin as his sole heir, who came in possession over the land. Her name was mutated in respect of certain properties. Later on she executed a gift deed on 6.6.1952 in favour of the plaintiff and again on 19.8.1978 and put him in possession of the gifted land. Certain lands also came to be possessed by the plaintiff as per Schedule-IV of the plaint. Her name was mutated in respect of certain properties. Later on she executed a gift deed on 6.6.1952 in favour of the plaintiff and again on 19.8.1978 and put him in possession of the gifted land. Certain lands also came to be possessed by the plaintiff as per Schedule-IV of the plaint. 3. Defendants 5 to 7 executed two sale deeds in favour of the defendants 1 to 3 in respect of Schedule-IV land despite no title over the property. 4. As per the averments in the plaint a proceeding under Section 144 of the Code of Criminal Procedure (for short the Code) was initiated and was converted into a proceeding under Section 145 of the Code. It was decided in favour of the plaintiffs father. Thereafter the defendants 1 to 3 initiated another proceeding under Section 144 of the Code in respect of the land as described in Schedule-IV to the plaint and the same proceeding was converted into one under Section 145 of the Code, which compelled the plaintiff to file the suit for declaration of title over the said land. 5. The defendants filed their written statements contributing the stand put forth in the plaint. As is evident the defendants 1 to 3 supported the stand of the defendants 5 and 6. Apart from controverting various facts asserted by the plaintiff they took the stand the deed of gift executed by Paro Telin in favour of the plaintiff is void, illegal and inoperative because she was never in possession of the lands covered under those gift deeds. It was also pleaded that the proceeding under Section 145 of the Code had terminated against Jagu Sao and the plaintiff never came in possession over the lands covered in the said proceeding. Even if it could be assumed that they were in illegal possession by virtue of the order passed in the proceeding under Section 145 of the Code they would be deemed to have been dispossessed because Jagu Sao and his brothers had transplanted paddy in 1960 and thereby they had dispossessed the plaintiff. 6. The defendants 5 to 7 admitted to have transferred those lands by the two registered sale-deeds to other defendants and put them in possession over the same. They also took the plea that the suit was barred by limitation. 6. The defendants 5 to 7 admitted to have transferred those lands by the two registered sale-deeds to other defendants and put them in possession over the same. They also took the plea that the suit was barred by limitation. It was contended by them that the proceeding that was converted to one under Section 145 of the Code had been dropped and the revision moved by the plaintiff against the proceeding was rejected by the High Court. 7. It was their further case that the plaintiff had no right, title and interest over the property and he was never in possession. The learned Trial Judge after referring to the pleadings of the parties framed seven issues. While dealing with various facets that cropped up the learned Trial Judge came to hold that the plaintiff had valid title in respect of the lands mentioned in Schedule-IV that the suit was not barred by limitation and the defendants had not have perfected title by adverse possession. 8. While dealing with various facets that cropped up the learned Trial Judge came to hold that the plaintiff had valid title in respect of the lands mentioned in Schedule-IV that the suit was not barred by limitation and the defendants had not have perfected title by adverse possession. 8. On an appeal being preferred, the lower appellate Court expressed the view that the learned Trial Judge was right in holding that Schedule-ll lands were acquired by Sanichar Sao as Karta of the joint family, which included the three sons of Chamari Sao; that the partition as alleged by the plaintiff had not taken place at the time as asserted by him in the plaint; that the documents that had been relied upon by the learned Trial Judge to record a conclusion that there had been partition of the joint family in which half and half share were allotted to both the parties did not justify such a conclusion and, in fact, a finding could not have been recorded on the basis of the said documents; that the stand of the plaintiff that the proceeding decided in 1960 under Section 145 of the Code established possession of the plaintiff was not acceptable; that Paro Telin was not the sole owner of the lands gifted to the plaintiff and she was also not in exclusive possession; that Paro Telin had no right whatsoever to gift the joint family property to the plaintiff; that there was no proof that the gift deed was acted upon; that there was no reliable evidence on record to show that the plaintiff was in possession of the suit land at any time; that the finding recorded by the learned Subordinate Judge that the plaintiff had valid title over the suit land was not supportable from the material brought on record inasmuch as there had been no documentary or adequate oral evidence that there had been a partition in the joint family and the two branches had been given half and half shares and Schedule-I property was allotted to Sanichar Sao, and that Schedule-11 lands were self-acquired lands of Sanichar Sao or that of Paro Telin so that she could gift the land to the plaintiff. 9. 9. Being of this view the learned appellate Judge came to hold that the plaintiff had failed to prove his title over the Schedule-IV land and, accordingly, he reversed the judgment and decree passed by the learned Trial Judge. 10. This Court while admitting the appeal had framed the following three substantial questions of law: "1. Whether the title of plaintiff- appellant could be challenged by the defendants in the present suit after the plaintiff lost the proceeding under Section 145 of the Code of Criminal Procedure in the year 1960 particularly when they did not file any suit within the period of limitation for declaration of title and recovery of possession? 2. Whether the defendants could challenge title of the plaintiff in the suit that was instituted in the year 1978? 3. Whether the finding regarding partition is erroneous in law?" 11. When the matter was listed before the learned Single Judge, the learned Single Judge took note of the fact that a proceeding under Section 145 of the Code in respect of the lands, which are subject matter of the suit was decided in favour of the plaintiffs father and against the defendant nos. 5 to 7 on 2.5.1960. The suit was filed for declaration of title in 1978. A contention was advanced on behalf of the appellant that since defendant nos. 5 to 7 or their purchasers defendant nos. 1 to 3 did not bring the suit within the period of limitation after the aforesaid adverse order passed under Section 145 of the Code on 12.5.1960 by operation of the provisions contained in Section 28 of the Limitation Act, 1908 (corresponding to Section 27 of the Limitation Act, 1963 ) read with Article 47 of 1908 Act, the right, title and interest of the defendants in the suit land stood extinguished after expiry of the period of limitation of three years. The learned Single Judge observed that the Executive Magistrate while deciding a proceeding under Section 145 of the Code had no jurisdiction to decide right, title and interest and, hence, if the contention of the appellant was accepted, the order which otherwise has no effect of a decision on the question of ones title would have that effect by efflux of limitation. Before the learned Single Judge reliance was placed on the decisions rendered in Badri Chaudhuri and Others V/s. Harbans Jha and Others, AIR 1919 Patna 447, Nando Kahar and Another V/s. Sri Bhup Narain Singh, AIR 1935 Patna 164 and Lala Hem Chand V/s. Lala Pearey Lal and Others, AIR 1942 Privy Council 64. The learned Single Judge appreciating the law laid down in those cases was of the view that in all those authorities there are deliberation and discussion of the provision of the Section 28 of the 1908 Act, while considering the rights of the plaintiff, who had lost in proceedings under Section 145 of the Code but in the present case the question for consideration is whether by reason of the provision of Section 28 of the old Limitation Act, the right, title and interest of a person who is a defendant in the suit would also stand extinguished. On the basis of the aforesaid analysis he thought it apposite to refer the matter to the larger Bench for hearing of the appeal. Though the learned Single Judge has not formulated the question yet he has stated thus: "Whether a defendant is estopped from pleading his rights and title in the property merely because he did not bring the suit within a period of limitation after getting adverse order in a proceeding under Section 145." Because of the aforesaid, the case was referred to the larger Bench and that is how the matter has been placed before us. 12 At the very outset, we may state though the whole case has been referred, yet learned counsel for the parties submitted that the question that arises for adjudication be answered and matter be sent back to the learned Single Judge for adjudication on merits, for there are many other aspects which are required to be gone into for the purpose of decision of the appeal. In view of the aforesaid conceded position we shall only deal with the question that has been stated by the learned Single Judge as we have reproduced hereinabove. 13. Section 28 of the Limitation Act, 1908 reads as under: "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." 14. Article 47 of the Limitation Act, 1908 reads as under: "47. 13. Section 28 of the Limitation Act, 1908 reads as under: "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." 14. Article 47 of the Limitation Act, 1908 reads as under: "47. By any person Three The date bound by an order years of the final respecting the pos- order in session of immovable the case." property made under the Code of Criminal Procedure, 1898(V of 1898) or the Mamlatdars Courts Act, 1906 (Bom. II of 1906), or by any one claiming under such person, to recover the property comprised in such order. 15. The said provisions came for interpretation in Nando Kahar and Another (supra). In the said case the question that arose to be decided whether the plaintiffs suit was barred under the provisions of Article 47 read with Section 28 of the 1908 Act. The Division Bench has expressed the view as follows: "Where a person in whose favour, proceedings under S. 145, Criminal P.C., have been decided and he has been in possession of the disputed property for more than three years and no step is taken by the claimant to question the order under S. 145 and to evict the successful party within a period of three years as provided by Art.47 then not only the remedy is barred but the title is also extinguished even though the person in possession may handover the possession of the disputed property to a third person." (Quoted from the placitum) 16. In this context we may refer to the decision rendered in Mir Mohammad Siddique & Anr. V/s. Keshwar Singh & Ors., (1967) I.L.R. XLVI Patna 1103. In the said case the Division Bench in paragraph 8 has held thus: "8. The last point which has been agitated by the parties in this Court is a question of extinguishment of title of the defendants. According to the learned Advocate-General, after the proceeding under Section 145 of the Code of Criminal Procedure was decided against the defendants on the 24th July, 1956, it was incumbent upon them to institute a suit to recover possession from plaintiff no. 1, who was a party to the criminal case, and the defendants not having done so, their title has been extinguished. 1, who was a party to the criminal case, and the defendants not having done so, their title has been extinguished. This matter has been dealt with by the learned Single Judge in his order of remand, where reference has been made to the case of Nando Kahar V/s. Sri Bhup Narain Singh, reported in A.l.R. 1935 Patna 164. The learned Single Judge has decided this point against the plaintiffs contention substantially on the ground that the decision of the proceeding under Section 145 of the Code of Criminal Procedure had been given after the institution of the present suit and, that, therefore, the title of the party against whom the adverse order was passed will not be affected. In my opinion, this contention must also be answered in favour of the plaintiffs. It must be taken that the title of the party against whom adverse decision was given by the criminal court was extinguished after three years from the date of the order. According to the learned Single Judge, title of the party who was adversely affected by the order of the criminal court could not be extinguished after three years of the order, if they succeed in the present litigation, which had commenced before the final order had been passed by the criminal court. But, this suit was instituted by the plaintiffs, who were ultimately successful in the proceeding under Section 145 of the Code of Criminal Procedure, and even if they lose in the civil litigation, no relief is available to the defendants by the dismissal of the plaintiffs suit. Therefore, merely because final order under Section 145 of the Code of Criminal Procedure had been passed after the institution of the present suit, it will not be open to the defendants, who were on the losing side in the proceeding, to contend that their title was not affected even after three years of the order of the criminal court. In my opinion, the case of Nando Kahar (supra) cannot be distinguished on the ground on which it has been distinguished by the learned Single Judge." 17. In my opinion, the case of Nando Kahar (supra) cannot be distinguished on the ground on which it has been distinguished by the learned Single Judge." 17. In view of the aforesaid Division Bench decision, it can safely be concluded that as a proposition of law it would not be open to the defendants, when they lose in a proceeding under Section 145 of the Code of Criminal Procedure, to contend that their title was not affected even after expiry of three years of the order of the criminal court. 18. Though we have answered the reference, yet whether the said principle would get attracted would depend upon the facts of each individual case. In the present case, whether the right, title and interest stood extinguished or not shall be examined by the learned Single Judge while hearing the second appeal regard being had to the factual matrix. 19. The reference is answered accordingly. The matter be placed before the learned Single Judge for adjudication on merits.