Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 898 (JHR)

Durga Devi v. Bhagirathmal Agarwalla

2014-08-27

D.N.UPADHYAY

body2014
JUDGMENT D.N. UPADHYAY, J. 1. This appeal has been preferred against the judgment dated 10th February, 2014 passed by Principal District Judge, East Singhbhum, Jamshedpur in Title Appeal No. 16 of 2011, whereby the judgment and decree passed and signed by learned Sub-Judge I, Jamshedpur in connection with Title Suit No. 25 of 2003 has been affirmed. 2. The appellants are defendants in Title Suit No. 25 of 2003 filed by Bhagirathmal Agarwal plaintiff (Respondent No. 1 herein). 3. The plaintiff brought a suit, being Title Suit No. 25 of 2003, for recovery of possession of the suit premises described in the schedule of the plaint, evicting the defendants therefrom. 4. The case of the plaintiff, in brief, is that the suit premises (part of building) standing over R.S. Plot No. 3351, Mouza Mango, was exclusive property of Bhevraj Agrawal father of the plaintiff, who had executed a registered will on 15th December, 1952, coupled with a registered codicil dated 10th September, 1956, whereby Bhevraj Agrawal bequeathed the properties, including the building standing over Plot No. 3351 in favour of the plaintiff. It is contended that Bhevraj Agrawal and his wife Kasturi Devi had no issue. They adopted the plaintiff as son by registered deed of adoption dated 15th December, 1952. Further case of the plaintiff is that Bhevraj Agrawal died on 24th September, 1977 leaving behind his widow Kasturi Devi and the plaintiff. After death of Bhevraj Agrawal, the plaintiff filed Probate Case No. 60 of 1981 for grant of probate of will executed by Bhevraj Agrawal. The said probate case was allowed vide order dated 19th April, 1984, and accordingly, probate against the said will was granted by learned Sub-Judge I, Jamshedpur on 3rd May, 1984. 5. It is further contended that since Kishan Lal Agrawal, brother-in-law of Bhevraj Agrawal (wife's brother) came from Rajasthan to Jamshedpur in search of his livelihood and he had no accommodation of his own at Jamshedpur, he was permitted to live in a portion of suit building, which was constructed up to ground floor and later on first floor was constructed and then second floor. Thereafter, said Kishan Lal Agrawal was permitted to occupy a portion of first floor and second floor. Thereafter, said Kishan Lal Agrawal was permitted to occupy a portion of first floor and second floor. In order to earn his livelihood, Kishan Lal Agrawal was permitted to occupy three shops and two godowns in the ground floor to run business, which is the subject matter of the suit. Accordingly, Defendant No. 1 Kishan Lal Agrawal along with his second wife and children were in occupation of the suit premises as licensee previously under Bhevraj Agrawal father of the plaintiff and after his death under the plaintiff. 6. It has been disclosed in the plaint that Defendant Nos. 2 to 6 are sons of Kishan Lal Agrawal, who were living with their father in the suit premises. For proper adjudication of the title suit, they have also been made parties to the suit. It has been pleaded that Kasturi Devi, wife of Late Bhevraj Agrawal, died on 5th March, 1987, leaving behind the plaintiff as her only legal heir and, thereafter, the plaintiff became absolute owner of the suit property by virtue of grant of probate of will as well as being the only legal heir of Late Bhevraj Agrawal. It has been contended that the plaintiff has revoked the licence and asked the defendants to vacate the suit premises, but the Defendant No. 1 on one pretext or the other has been delaying in vacating the suit premises and lastly agreed to vacate the suit premises by 31st December, 2002. Accordingly, the plaintiff met Defendant No. 1 on 1st January, 2003 and asked him to vacate the suit premises, but he flatly refused to vacate the suit premises. Hence, the plaintiff brought the suit. 7. The suit was decreed in favour of the plaintiff on context with cost and the defendants were directed to vacate the suit premises within three months from the date of decree, failing compliance the plaintiff shall be entitled to take possession by process of law by executing a decree. 8. The appellants/defendants, being aggrieved by and dissatisfied with the judgment dated 24th May, 2011 and decree dated 2nd June, 2011, passed and signed by learned Sub-Judge I, Jamshedpur in connection with Title Suit No. 25 of 2003, preferred Title Appeal No. 16 of 2011 before the Principal District Judge, East Singhbhum, Jamshedpur. 8. The appellants/defendants, being aggrieved by and dissatisfied with the judgment dated 24th May, 2011 and decree dated 2nd June, 2011, passed and signed by learned Sub-Judge I, Jamshedpur in connection with Title Suit No. 25 of 2003, preferred Title Appeal No. 16 of 2011 before the Principal District Judge, East Singhbhum, Jamshedpur. Learned Lower Appellate Court after hearing the parties concurred with the findings of the learned Trial Court and dismissed the title appeal, affirming the judgment and decree passed and signed by the learned Trial Court. Hence, this second appeal. 9. The appellants/defendants have tried to impress upon this Court that there are substantial questions of law required to be decided in this second appeal and it may be admitted. 10. According to the appellants, the suit property was initially owned and possessed by Bhevraj Agrawal, brother-in-law (JIJA) of Late Kishan Lal Agrawal. Bhevraj Agrawal was not having issue and, therefore, he had adopted the plaintiff as his son. Bhevraj Agrawal died on 24th September, 1977, leaving behind his widow Kasturi Devi and the plaintiff as his son. Kasturi Devi, wife of Bhevraj Agrawal died on March, 1987, leaving behind the plaintiff as her only legal heir and successor. It is contended that Kishan Lal Agrawal with his family entered into the suit premises as a licensee and his possession was permissive, but with the consent of Bhevraj Agrawal, he had made further Pucca construction and occupied the suit premises constructed by him. 11. The defendants have also pleaded the right of easement and referred to Section 60 of the Indian Easement Act, 1882. It is contended that deed of adoption, by which the plaintiff has been claiming that he is adopted son of Bhevraj Agrawal and Kasturi Devi, is not genuine and it was not executed in accordance with law. The biological father of the plaintiff did not corroborate or support the said adoption. The main point on which learned counsel has given much stress is that the suit brought by the plaintiff is barred by Law of Limitation in view of Sections 3 and 27 and Article 65 of the Limitation Act, 1963. The biological father of the plaintiff did not corroborate or support the said adoption. The main point on which learned counsel has given much stress is that the suit brought by the plaintiff is barred by Law of Limitation in view of Sections 3 and 27 and Article 65 of the Limitation Act, 1963. In this context, learned counsel has referred to Ext.6certified copy of the order dated 8th February, 1991 passed in Eviction Suit No. 113 of 1988 and submitted that the aforesaid suit was filed by the plaintiff for evicting a tenant from the tenanted premises. In that suit, the appellants filed a petition under Order 1 Rule 10 of the Code of Civil Procedure, claiming themselves to be the owner of the property and being necessary parties be impleaded. Though the petition was rejected, but filing of such petition was sufficient to suggest that the appellants had disclosed their identity to that of a owner of the property, claiming their title by way of adverse possession. The date on which such petition was filed and the date on which the plaintiff could learn about the claim of the appellants they had been claiming their title by way of adverse possession shall be the date from which the period of limitation shall commence. As per Article 65 of the Limitation Act, 1963, the suit for recovery of possession has not been brought within a period of twelve years from the date on which the appellants had claimed their title over the suit property. Therefore, the suit is barred by Law of Limitation and it should not have been decreed and that constitutes substantial questions of law, which are as follows:- (a) Whether decree passed by the Court below can be sustained particularly when the courts below have failed to consider the effect of Ext.6 in view of Sections 3, 27 and Article 65 of the Limitation Act? (b) Whether the findings of the Courts below that Bhagirathmal Agrawal was the son of Bhevraj Agrawal can be sustained when neither essential conditions of valid adoption were proved and no witness was examined to prove relationship in terms of Sections 50 and 60 of the Evidence Act? (b) Whether the findings of the Courts below that Bhagirathmal Agrawal was the son of Bhevraj Agrawal can be sustained when neither essential conditions of valid adoption were proved and no witness was examined to prove relationship in terms of Sections 50 and 60 of the Evidence Act? (c) Whether the plaintiff can be held to be the owner of the suit property on the basis of the will by which only landed property was bequeathed to him and not the building standing thereon? 12. Counsel for the plaintiff/respondents has pointed out that the plaintiff was adopted by Bhevraj Agrawal and his wife Kasturi Devi and it was known to everyone, including the appellants/defendants. Bhevraj Agrawal father of the plaintiff had also executed a will on 15th December, 1952 coupled with registered codicil dated 10th September, 1956, whereby testator Bhevraj Agrawal bequeathed all his properties, including the suit building, standing over Plot No. 3351. After death of Bhevraj Agrawal, the plaintiff filed Probate Case No. 60 of 1981 and it was accordingly allowed. There are documents on record to show that the plaintiff has been disclosing his identity that he is son of Bhevraj Agrawal and some of the documents have also been exhibited as Ext.10 and 10/a series. 13. It is pointed out that the appellants had admitted their possession in the suit premises to that of a licensee. When Kishan Lal Agrawal with his family came to Jamshedpur from Rajasthan, he made a request to Bhevraj Agrawal to provide him accommodation and his said request was, accordingly, acceded. After death of Bhevraj Agrawal, the possession of the appellants/defendants continued as licensees under the plaintiff and, therefore, they cannot claim title over the suit property by way of adverse possession. In this context, learned counsel has referred to and relied upon the decision of the Hon'ble Supreme Court reported in Annasaheb Bapusaheb Patil & Others vs. Balwant @ Balasaheb Babusaheb Patil & Others, AIR 1995 SC 895 . In Paras 12 and 13 of the said decision, Hon'ble Supreme Court has held as under:- "12. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 13. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." Learned counsel has further referred to and relied upon the decision reported in Kashi Ram vs. Harbhajan Singh Bhaiji, AIR 2002 H.P. 154 . In Para 22 of the said decision, it has been held that where a party admits himself to be in permissive possession, then there is no question of his being in adverse possession. The said judgment has been passed following the ratio laid down in the case of Annasaheb Bapusaheb Patil (supra). In Para 22 of the said decision, it has been held that where a party admits himself to be in permissive possession, then there is no question of his being in adverse possession. The said judgment has been passed following the ratio laid down in the case of Annasaheb Bapusaheb Patil (supra). Learned counsel has also referred to and relied upon the judgment of the Hon'ble Supreme Court reported in Gurdev Kaur & Others vs. Kaki & Others, 2006 AIR SCW 2404 and submitted that by presenting second appeal against concurrent findings of subordinate courts, a third trial cannot be permitted. There must be a substantial question of law involved and the second appeal is not required to be admitted to decide disputed facts. 14. I perused the judgments of subordinate courts. Admitted case of the appellants is that they are enjoying permissive possession over the suit premises. Initially, Bhevraj Agrawal permitted his brother-in-law (SALA) Kishan Lal Agrawal and his family members to occupy the suit premises when they came to Jamshedpur from Rajasthan. In due course further construction was made by Bhevraj Agrawal in the said building and the appellants were accommodated in the first floor and second floor and three shops were also given to them for their livelihood. After the death of Bhevraj Agrawal and his wife Kasturi Devi, the plaintiff, who is adopted son of Bhevraj Agrawal, inherited the property and became absolute owner. Bhevraj Agrawal and his wife Kasturi Devi had taken the plaintiff as their son by deed of adoption, which has not been challenged till date, and the evidence on record clearly proves the adoption legal, valid and genuine to the knowledge of whole world, including the appellants. 15. The question of consideration of Ext.6 and the limitation in presenting the suit have not been specifically pleaded by the appellants in their written statement. They have not made out a specific case that they have been claiming their title by way of adverse possession since presentation of a petition under Order I Rule 10 of the Code of Civil Procedure in Eviction Suit No. 113 of 1988. Simply by referring Ext.6 on record, the plea of limitation under Sections 3 and 27 and Article 65 of the Limitation Act, 1963 cannot be raised in this second appeal. 16. Simply by referring Ext.6 on record, the plea of limitation under Sections 3 and 27 and Article 65 of the Limitation Act, 1963 cannot be raised in this second appeal. 16. In view of the concurrent findings of both the courts below and discussions, as made above, I do not find any substantial question of law to be decided in this appeal. 17. In the circumstances, this second appeal is dismissed.