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2013 DIGILAW 266 (PAT)

Hari Shankar Pandey v. Akshyabat Pandey

2013-02-26

V.NATH

body2013
Order Heard Mr. Keshav Prasad Srivastava, the learned senior counsel for the appellants and Mr. Jitendra Kishore Verma, the learned counsel for the plaintiff-respondent no.1. 2. This appeal has been filed by the defendant 1st set assailing the judgment and decree of affirmance passed by the appellate court below upholding the decree for partition in favour of the plaintiff. 3. The plaintiff has filed the suit for partition of his share in the suit property mentioned in Schedule -1 of the plaint asserting the same to be joint family property in which the parties to the suit have unity of title and possession. The defendant 1st set has resisted the claim of the plaintiff on the ground that there had already been partition in the year 1936 by Partition Suit No. 51/36 between the parties for the entire joint family property. It is the further case that the suit property is no more joint family property as it was auction sold and purchased by Mathura Prasad in auction sale dated 19-6-40 held in Execution Case No. 1778/39 of the court of Munsif I, Chapra. The defendant-1st set further has asserted to have purchased the suit property from the auction purchaser Mathura Prasad by sale deed dated 28-1-46 and came in possession of the same. 4. The trial court as well as the appellate court below has come to the finding that the contesting defendant 1st set has failed to establish that the delivery of possession was taken by the auction purchaser in pursuance to auction sale of the suit property which remained in joint possession of the plaintiff and the defendants. Both the courts below thereafter have come to the conclusion that there is unity of title and jointness of possession between the parties with regard to the suit property and accordingly granted decree for partition between the parties. 5. Mr. Srivastava, the learned senior counsel has assailed the impugned judgments of both the courts below on the ground that in the earlier suit for partition of the year 1936 the court had fully considered the case of loan taken by the predecessor of the plaintiff and thereafter passed the preliminary decree for partition. It has been urged that in the final decree proceeding also the pleader commissioner took notice of the auction sale of the suit property and therefore excluded the same from the final decree. It has been urged that in the final decree proceeding also the pleader commissioner took notice of the auction sale of the suit property and therefore excluded the same from the final decree. It has been canvassed by Mr. Srivastava that the plaintiff had not challenged the said auction sale and therefore he would be estopped from establishing his claim over the suit property. It has been also argued that the defendant 1st set-appellants having purchased the suit property from the auction purchaser have come to acquire the exclusive title and possession over the same, and after auction sale the nature of the suit property had changed and it no more remained the joint family property. It has been contended that both the courts below have not considered these crucial aspects and have reached to erroneous findings of fact ignoring material evidence in this regard. 6. From the perusal of the impugned judgments of both the courts below and after considering the submission of Mr. Srivastava, the learned senior counsel for the appellants, it is pellucid that undisputedly the suit property was subject matter of partition along with other properties of the family in the earlier partition suit No. 51/36 between the parties in which a preliminary decree was also passed. However, before the preparation of the final decree in that suit, the suit property was auction sold and purchased by the creditor-decree holder Mathura Prasad in Execution Case No. 1778/39. The pleader commissioner after taking notice of the auction sale of the suit property did not include the same as the subject matter of the final decree proceeding and consequently no final decree was passed for the suit property in Partition Suit No. 51/1936. 7. However, the plaintiff has claimed that the auction purchaser did not take the delivery of possession of the suit land as his claim was satisfied by the predecessor of the plaintiff and the suit property has continued to be the joint family property in joint possession of the parties. The contesting defendants have failed to bring on record cogent evidence to establish that the delivery of possession over the suit land had been effected in favour of the auction purchaser. As such the auction sale had definitely been not acted upon and remained only a paper transaction. 8. The contesting defendants have failed to bring on record cogent evidence to establish that the delivery of possession over the suit land had been effected in favour of the auction purchaser. As such the auction sale had definitely been not acted upon and remained only a paper transaction. 8. Under Article 134 of the Limitation Act, a period of one year has been prescribed for an auction purchaser to take possession of the property subject matter of auction sale. In the present case it could not be established by the defendant 1st set that the auction purchaser had taken delivery of possession over the suit land .It is also not the case of the defendant 1st set, who claims exclusive title over the suit property by purchase from the auction purchaser, that the auction purchaser had taken steps for delivery of possession within one year of the auction sale becoming absolute or had filed a suit within twelve years for recovery of possession as prescribed under Article 65 of the Limitation Act. Both the courts below, on scrutiny of evidence, have come to concurrent finding that the parties to the suit are in joint possession over the suit property At this juncture it will be pertinent to take into notice section 27 of the Limitation Act which provides for extinguishment of right to property after the expiry of the period prescribed for the suit to recover possession. The cumulative effect of absence of delivery of possession in favour of the auction purchaser and the provisions of the Limitation Act would be that the title of the auction purchaser had stood extinguished and the suit property has continued to be the joint family property of the plaintiff and the defendants. It is also not in dispute that in the final decree proceeding the suit property was excluded and therefore ultimately there had been no partition with regard to the suit property. Once after the right of the auction purchaser to the suit property on the basis of auction sale gets extinguished, the claim of the defendant 1st set who have asserted their exclusive title over the suit land by purchase from the said auction purchaser also gets extinguished. Once after the right of the auction purchaser to the suit property on the basis of auction sale gets extinguished, the claim of the defendant 1st set who have asserted their exclusive title over the suit land by purchase from the said auction purchaser also gets extinguished. The conclusion reached by the courts below that the suit property remained in the joint family property of the plaintiff and the defendants therefore is correct and based on proper appreciation of the evidence as led by the parties. The issues between the parties are now concluded by the findings of fact and there is no perversity in the same. 9. In the result, there is no substantial question of law arising in this appeal which is, accordingly, dismissed.