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2013 DIGILAW 623 (JHR)

Nasru Querishi v. Hazra Khatoon

2013-05-10

N.N.TIWARI

body2013
Judgment This second appeal is by the defendant appellant-appellant. 2. The plaintiff had filed Title Suit no.157 of 2003 against the defendant-appellant praying for a decree of declaration that sale deeds dated 22.03.1988 and 13.04.1992 are genuine, perfect and came into operation and the plaintiff's possession be confirmed in the suit land. Alternatively, if the plaintiff is found dispossessed from the suit land, possession be delivered in her favour evicting the defendant-appellant from the suit property. 3. According to the plaintiff, the suit property along with the house measuring an area of two kathas 12 chhatak standing over Municipal Survey Plot no.1624 corresponding to Old Municipal Holding no.557 and new Holding no.623, Ward no. IV of the Ranchi Municipal Corporation at Kasai Mohalla, P.S. Lower Bazar, Town & District-Ranchi was jointly acquired by Most. Rasulan, mother of the plaintiff and Ahmad Hussain, father of the plaintiff by virtue of a registered sale deed dated 12.01.1961 from Md. Talib and others for valuable consideration. They came in possession of the suit property by virtue of the said sale deeds and got their names jointly mutated in the revenue record of the State and Ranchi Municipal Corporation(the then Ranchi Municipality). They paid rent and taxes in their own names. Most. Rasulan being in need of money, sold her share of land measuring one katha six chhatak along with house standing on a portion of the said land to the plaintiff by virtue of a sale deed dated 22.03.1988 for valuable consideration and put the plaintiff in possession thereof. Md. Hussain father of the plaintiff also sold remaining one katha six chhatak of land along with house standing on the aforesaid holding to Shamima Begam wife of Md. Saifullah by virtue of sale deed dated 3.4.1989 for a valuable consideration and put her in possession thereof. Shamima Begam then sold the said property to the plaintiff by virtue of registered sale deed dated 13.04.1992 and put the plaintiff in possession thereof. The plaintiff accordingly became absolute owner with respect to the entire two katha 12 chhatak of land along with house standing over a portion of Municipal Survey plot no.1624 corresponding to old Municipal Holding no.557(new Holding no.623, Ward no. IV of Ranchi Municipal Corporation). There was partition between Md. Hussain and Most. Rasulan and the property was allotted half and half. One katha and six chhatak was allotted to Md. IV of Ranchi Municipal Corporation). There was partition between Md. Hussain and Most. Rasulan and the property was allotted half and half. One katha and six chhatak was allotted to Md. Hussain with a Khapraposh structure under occupation of the defendant. Though the plaintiff became absolute owner of the entire property, the defendant remained in permissive possession. Since the plaintiff and defendant are own brother and sister, the plaintiff allowed the defendant to reside in the suit property on the assurance given by the defendant that he will vacate the same after searching out suitable accommodation. He had also assured to pay rent @ Rs.125/-per month. But the defendant neither paid rent to the plaintiff nor vacated the suit property. 4. Earlier, the plaintiff had filed Eviction Suit being Eviction Suit no.58 of 1994 in the court of learned Munsif, Ranchi. The suit was dismissed with observation that the plaintiff should have filed a regular title suit. The plaintiff had preferred appeal against the judgment and decree being Title Appeal no.53 of 2000, which was disposed of by learned Additional Judicial Commissioner-V(FTC), Ranchi observing that the plaintiff-appellant failed to prove the relationship of landlady and tenant between her and defendant. Learned court directed to file title suit for declaration of title and recovery of possession. On that basis, the instant suit was filed. The plaintiff asserted that she had purchased the suit property and acquired absolute title. The defendant is in permissive possession of the suit premises. He is liable to be evicted. 5. The defendant-appellant contested the suit by filing written statement. It was stated, inter alia, that the suit was barred by limitation and principle of res-judicata. The plaintiff has got neither title nor possession over the suit property nor there is any relationship of landlady and tenant between the plaintiff and the defendant. The alleged sale deed dated 22.03.1988 is entirely invalid and illegal and the same has not been acted upon. The defendant is in sole and exclusive possession over the suit property for more than 50 years with the notice and knowledge of the plaintiff. The plaintiff has got no cause of action for the suit. The claim is entirely illegal and invalid and the suit is liable to be dismissed. 6. Learned trial court framed as many as eight issues. Specific issue was framed regarding limitation and adverse possession as Issue no.5. The plaintiff has got no cause of action for the suit. The claim is entirely illegal and invalid and the suit is liable to be dismissed. 6. Learned trial court framed as many as eight issues. Specific issue was framed regarding limitation and adverse possession as Issue no.5. Learned trial court discussed the issues in detail on the basis of fact, evidences and material on record. While referring to the said issue, learned trial court held that the defendant was allowed to occupy the suit premises by the plaintiff and the defendant's possession is permissive. The defendant though set up the claim of adverse possession, but failed to establish the same. The said issue was decided against the defendant and in favour of the plaintiff. The other issues were also decided in favour of the plaintiff and the suit was decreed directing the defendant to vacate the suit property. 7. Against the said judgment and decree of learned trial court, the defendant filed appeal in the court of District Judge, Ranchi being Title Appeal no.23 of 2011. The said appeal was heard and decided by learned Additional District & Sessions Judge-V, Ranchi. 8. Both the parties had addressed the court on all the issues. After thorough discussion and consideration of the facts and evidences on record and the provision of law, learned 1st appellate court concurred with the finding of learned court below and held that the defendant failed to establish his claim of adverse possession and the suit is not barred by limitation. Learned lower appellate court, in view of the pleadings and material on record, observed that the plaintiff's suit for possession is based on her title and the same attracts Article 65 of the Limitation Act. In the cases falling within Article 65, the plaintiff has to establish his title and onus shifts upon the defendant to prove the claim of adverse possession and hostile title and possession over the suit property against the title of the owner for more than 12 years. A long possession without any element of hostility against the true owner is not an adverse possession and such possession, which is not adverse, is permissive. Learned lower appellate court thus decided the said issue against the defendant and in favour of the plaintiff and upheld the judgment and decree of learned trial court and dismissed the appeal. 9. A long possession without any element of hostility against the true owner is not an adverse possession and such possession, which is not adverse, is permissive. Learned lower appellate court thus decided the said issue against the defendant and in favour of the plaintiff and upheld the judgment and decree of learned trial court and dismissed the appeal. 9. In the second appeal, the said judgments and decrees have been challenged on the ground that the courts below have erred in applying Article 65 of the Limitation Act though Article 58 is attracted in the case and the suit filed after three years of the execution of the sale deeds is hopelessly barred by Limitation and the suit was liable to be dismissed. 10. Mr. V. Shivnath, learned senior counsel, appearing on behalf of the appellant, submitted that the suit was mainly for declaration that the sale deeds dated 22.03.1988 and 13.04.1992 are genuine and perfect. It was not a suit for possession by owner of the property. The plaintiff's suit attracts Article 58 of the Limitation Act, which prescribes three years limitation from the date when the right to sue first accrued. Learned counsel submitted that the suit was filed in the year 2003 seeking declaration of genuineness of the sale deeds dated 22.03.1988 and 13.04.1992 i.e. much after expiry of three years and, as such, the suit was barred under Article 58 of the Limitation Act. Learned counsel submitted that while discussing the issue of limitation, learned courts below did not address the said vital aspect of law. Learned courts below without properly appreciating the appropriate provision of Limitation Act, misdirected themselves and dragged the case to the fold of Articles 64 and 65 of the Limitation Act, which are not at all attracted in the instant case. Due to the said infirmity, the judgments and decrees of the courts below are unsustainable and are liable to be set aside. The substantial question of law, as such, arises in the case is the erroneous application of the provision of Limitation Act in deciding the main issue involved in the suit. After hearing learned senior counsel for the appellant and examining the record, I find that the plaintiff's suit is not for bare declaration. The suit was also for consequential relief. The substantial question of law, as such, arises in the case is the erroneous application of the provision of Limitation Act in deciding the main issue involved in the suit. After hearing learned senior counsel for the appellant and examining the record, I find that the plaintiff's suit is not for bare declaration. The suit was also for consequential relief. The plaintiff has sought declaration of genuineness of the sale deeds, acquisition of her title on that basis as also confirmation of her possession. The plaintiff claimed possession based on title acquired by her by virtue of the sale deeds dated 22.03.1988 and 13.04.1992. Article-65 deals with the suit for possession of immovable property or any interest based on their title. The period of limitation is 12 years when the possession of the defendant becomes adverse. Since the plaintiff has filed the suit for possession of the aforesaid immovable property on the basis of her title acquired by virtue of the sale deeds as aforesaid, the only appropriate provision applicable in the instant case is Article 65 of the Limitation Act. Since it is not a suit for bare declaration, Article 58 of the Limitation Act has no application. 12. The defendant was conscious of the said legal position and had taken plea of adverse possession in his written statement. Learned courts below have concurrently found that the defendant failed to establish acquisition of title by adverse possession. Learned trial court as well as learned lower appellate court concurrently held that the plaintiff's suit is for possession based on title and it attracts Article 65 of the Limitation Act and the suit is not barred by limitation. Both the courts have discussed the said issue in detail and have come to the said finding of fact based on evidences and material on record. 13. The said concurrent finding of fact on the issue of adverse possession is binding on the second appellate court. 14. I, therefore, find no error in the impugned judgment and decree giving rise to any substantial question of law to be considered and decided in this second appeal. 15. This appeal is, accordingly, dismissed.