Devnarayan Raut v. Kabita Devi Wife of Late Balram Raut
2025-01-09
ANUBHA RAWAT CHOUDHARY
body2025
DigiLaw.ai
JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. Heard the learned counsel appearing on behalf of the appellant. 2. Learned counsel for the appellants submits that the learned courts have recorded right, title and possession of the appellants in connection with the property covered under Sale Deed dated 11.7.81 which was the northern portion of the property, although no such relief was sought by the plaintiff nor the defendants claimed right over the same, although the sale deed was executed in favour of the defendants. The specific case of the defendants was that although the northern portion of the property was sold, but the plaintiffs permitted the defendants to take possession of the southern portion instead of northern portion in which the defendants have constructed their house. 3. The learned counsel has submitted that he has taken instructions from the client who has informed him that they are not concerned with the northern portion of the property which was subject matter of the aforesaid sale deed, rather they are concerned only with the southern portion of the property. The learned counsel submits that since the defendants were put in possession of the southern portion of the property, the defendants also claimed adverse possession over the same, but no such issue was framed by the Trial Court or by the Appellate Court and therefore an important issue which cropped up on the basis of plaint and written statement of the parties was neither framed nor decided. The learned Courts recorded that the plaintiff was in possession of the southern portion of the suit property, although the specific case of the plaintiff was that a portion of schedule-II of the property which was mentioned in schedule-III was in possession of the defendants and the plaintiff did not even seek recovery of possession of schedule-III property from the defendants. The learned counsel has reiterated that property in schedule-III was a part of the schedule-II property and the learned courts have declared right, title, interest and possession of the plaintiffs with respect to the entire schedule-II property.
The learned counsel has reiterated that property in schedule-III was a part of the schedule-II property and the learned courts have declared right, title, interest and possession of the plaintiffs with respect to the entire schedule-II property. The learned counsel submits that the appeal be admitted on the following substantial question of law:- (a) “Whether the learned courts have erred in law in not framing any issue in connection with adverse possession as claimed by the defendants and on that count whether the matter is fit to be remitted to the concerned court for framing an issue of adverse possession and deciding the same accordingly? (b) Whether the learned courts have gone beyond the case of the respective parties by declaring right, title, interest and possession of the defendants in connection with northern portion of the property which was covered by the sale deed dated 11.07.1981.” 4. Considering the submissions made, this second appeal is admitted to be heard on the aforesaid substantial questions of law. 5. Let notice be issued to the respondents under registered cover with A/D and additionally notice to all the respondents, except respondent no. 11, under ordinary process for which requisites be filed within one 10 days from today. 6. Let the records be called for from the concerned court. 7. Post this case on 20.03.2025 in the supplementary cause list under appropriate heading.