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2020 DIGILAW 1113 (JHR)

Madhusudan Lal v. Samundri Devi

2020-11-26

KAILASH PRASAD DEO

body2020
JUDGMENT : (Through : Video Conferencing) 1. Heard, learned counsel for the appellants, Mr. Ajay Kumar Sinha. 2. The present second appeal has been preferred against the judgment dated 05.12.2011 and decree signed on 19.12.2011 passed by learned Principal District Judge, Palamau at Daltonganj, whereby the appeal filed by the appellants has been dismissed and the judgment dated 09.01.2008 and decree dated 21.01.2008 passed by learned Munsif, Palamau at Daltonganj in Title Suit No. 01 of 1995 has been confirmed. 3. The present appellants have been substituted upon the death of the original plaintiff/appellant before the trial court and the first appellate court. 4. Appellant / Plaintiff filed Title Suit No. 01 of 95 with regard to Plot No. 303, area – 66 3/4 decimals and Plot No. 314, area – 18 decimals of land situated at Village – Nimiya, P.S.-Daltonganj, claiming her right by way of adverse possession being in possession peacefully, open and hostile to the defendants since 1974 and also sought the relief regarding the Sale Deed No.-2497 dated 07.03.94 executed by defendant no.-2 in favour of defendant no.-1, being void-ab intio document conferring no right, title, interest or possession on the basis of said sale deed. The learned Munsif, Palamau at Daltonganj dismissed the said title suit. 5. Aggrieved by the judgment dated 09.01.2008 and decree signed on 21.01.2008 in Title Suit No.-01 of 95, the original appellant filed Title Appeal being Title Appeal No. 06 of 2008 before the Principal District Judge, Palamau at Daltonganj, which was also dismissed by the learned Principal District Judge dated 05.12.2011 and decree signed on 19.12.2011 and affirmed that the original plaintiff / appellant failed to prove her adverse possession as she has not been able to prove possession over Plot No. 314 with hostile intent against the true owner and also failed to give the date from which the claim of adverse possession began and when it became absolute. Further, the lower appellate court also affirms that the entire Plot No. 314 is not in dispute rather fraction 4 ¼ decimal is in dispute which was being looked after by the respondent no. 1 and the title of real owner could not be dissolved by the appellant and the deed created by the said legal owner cannot be said to be illegal. 6. 1 and the title of real owner could not be dissolved by the appellant and the deed created by the said legal owner cannot be said to be illegal. 6. It appears that this second appeal has been preferred against the concurrent finding by both the courts below in Title Suit No. 01/1995 and Title Appeal No. 06/2008. 7. Another Second Appeal No. 11/2012 has been preferred by the same Plaintiff / Appellant which has already been dismissed by Coordinate Bench of this Court in terms of judgment dated 12.05.2020. The said Second Appeal was preferred against the judgment dated 05.12.2011 and decree signed on 19.12.2011 passed by learned Principal District Judge, Palamau at Daltonganj in Title Appeal No. 24/2007, confirming the judgment and decree dated 23.03.2007 passed by the Subordinate Judge, 2nd Palamau at Daltonganj in Title Suit No. 55/1995. 8. The present Second Appeal No. 12/2012 has been preferred as the appellants has claimed right by way of adverse possession being in possession peacefully, open and hostile to the defendant since 1974 and the other Second Appeal No. 11/2012 has been preferred by the same appellant Madhu Sudan Lal, husband of Uma Sharan on the ground that the sale deed executed by the defendant nos. 1 & 2 in favour of defendant no. 3 vide Sale Deed no. 4566 dated 05.05.1994 and 3635 dated 11.04.1994 be declared ab-initio void, conferring no right, title interest or possession on the basis of said sale deeds. 9. This court finds that for the same suit property on two different grounds, same plaintiff has filed two original suits before the trial court one Title Suit No. 01/1995 and another Title Suit No. 55/1995, both were dismissed. Thereafter, plaintiff has preferred respective Title Appeal No. 06/2008 and Title Appeal No. 24/2007 before the learned Appellate Court, which has also been dismissed. Thereafter, two second appeals have been preferred i.e. S.A. No. 11/2012 and S.A. No. 12/2012. 10. It further appears that both the courts have given concurrent finding and in S.A. No. 11/2012, the Coordinate Bench of this Court has affirmed the same, that the plaintiff has got no title over suit property and failed to prove that they remained in possession over said suit land. 11. 10. It further appears that both the courts have given concurrent finding and in S.A. No. 11/2012, the Coordinate Bench of this Court has affirmed the same, that the plaintiff has got no title over suit property and failed to prove that they remained in possession over said suit land. 11. The Hon’ble Apex Court in the case of Gurnam Singh v. Lehna Singh reported in (2019) 7 SCC 641 retirated the principles held by the Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar reported in (1999) 3 SCC 722 that in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion, unless it finds that the conclusions drawn by the lower court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Supreme Court; OR (iii) Based on inadmissible evidence or no evidence. 12. S.A. No. 11/2012 has been already dismissed by Coordinate Bench of this Court in terms of judgment dated 12.05.2020. The present Second Appeal No. 12/2012 is before this Court. The appellants have not brought on record any order of superior court stating that the order passed in the S.A. No. 11 of 2012 has been reversed and as such the same appears to have attained the finality. 13. Since the Second Appeal No. 11/2012 has already been dismissed on merits and the question of claiming the right by way of adverse possession being in possession peacefully, open and hostile to the defendant since 1974, has been preferred in the present second appeal (S.A. No. 12/2012). The grounds has been already negated by the Coordinate Bench of this Court in S.A. No. 11/2012 by dismissing on merits, there is no reason to interfere in the impugned judgment and decree of concurrent finding passed by both the courts below. Thus, this court under Section 100 C.P.C is not inclined to interfere with the same. 14. Accordingly, the present second appeal is hereby dismissed.