Ashok Kumar Lohia Alias Ashok Lohia Vs Sharda Devi Modi

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2025:JHHC:19204

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Revision No. 27 of 2024

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Ashok Kumar Lohia @ Ashok Lohia, aged about 66 years, son of Late Om Prakash Lohia, Resident of Balkishan Sahay Road, Opposite Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali, District Ranchi (Jharkhand).

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Deepak Kumar Lohia @ Deepak Lohia, aged about 60 years, son of Late Om Prakash Lohia, Resident of Balkishan Sahay Road, Opposite Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali, District- Ranchi (Jharkhand).

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Nisha Jalan @ Kiran Jalan, aged about 62 years, daughter of Late Om Prakash Lohia, Resident of Balkishan Sahay Road, Opposite Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali, District Ranchi (Jharkhand).

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Sangita Poddar, aged about 58 years, daughter of Late Om Prakash Lohia, Resident of Balkishan Sahay Road, Opposite Jaipal Singh Stadium (West), P.O. G.P.O., P.S. Kotwali, District Ranchi (Jharkhand).

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… Petitioners/Defendants

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Versus

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Sharda Devi Modi, aged about 84 years, wife of Late Om Prakash Modi, resident of Jayshree House', Gandhi Chowk, Upper Bazar, P.O. GPO, P.S. Kotwali, District Ranchi (Jharkhand).

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… Opp. Party/Plaintiff

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Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioners : Mr. Indrajit Sinha, Adv. Mr. Vipul Poddar, Adv. Ms. Sugandha Jaiswal Poddar, Adv. For the Opp. Party : Mr. Shresth Gautam, Adv.

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Order No.14/Dated- 15.07.2025

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1. Heard Mr. Indrajit Sinha, learned counsel for the petitioners as well as Mr. Shresth Gautam, learned counsel for the opposite party. 2. The instant civil revision has been filed by the petitioners challenging the validity of order dated 28.05.2024 (hereinafter referred as 'impugned order') passed in Miscellaneous Civil Application No.788 of 2023 (arising out of Original Suit No.59 of 2023) by learned Civil Judge (Senior Division-I), Ranchi, whereby and whereunder the application dated 03.07.2023 (Annex.2) filed

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by the petitioners under Order VII Rule 11(d) of the Code of Civil Procedure has been rejected.

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3. Factual matrix giving rise to this revision is that opposite party Smt. Sharda Devi Modi filed the Original Suit Case No.59 of 2023 before the learned Trial Court stating inter alia that after family partition, the suit property came into share of one Smt. Madhulata Devi vide partition deed No.7326 dated 26.05.1971. The said Madhulata Devi vide sale deed No.5974 dated 31.03.1975 sold out the Schedule 'A' property being part of M.S. Plot No.1304 to the plaintiff/opposite party. After mutation in the revenue records, vide Mutation Case no.1254 of 1983-84, she is paying rent to the State Government regularly in respect of Schedule 'A' property. Thereafter, in the year 1984, the plaintiff also got her name mutated in Ranchi Municipal Corporation and got Holding No.1194/B1, present corresponding No.0220000629000A2. The plaintiff did not raise any boundary wall over her purchased land and in the meantime, she along with her family members shifted to Bombay now Mumbai for their livelihood. It is further alleged that adjacent to the land of the plaintiff measuring an area 5 Kathas 2 Chhatak and 23 Sq.ft. land was sold by the vendor of plaintiff namely Smt. Madhulata Devi through registered sale deed No.2240 of 1974 to the mother of the defendants, namely, Smt. Sharda Devi Lohia . Thereafter, the defendants sometimes in the year 1975 constructed a house and also raised boundary wall over their purchased land. It is further alleged that in the year 2006, the plaintiff along with her family members returned from Mumbai to Ranchi at their ancestral residence known as "Jayshree House'' Gandhi Chowk, Upper Bazaar, Ranchi. Thereafter, plaintiff's sons constructed a small office measuring 330 Sq.ft. at South-Eastern side of Schedule 'A' property and also got electric

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connection, water connection therein and got reassessment of Holding Tax for their new construction in 2007-08. It is further alleged that recently the plaintiff wanted to develop the said Schedule 'A' property into a multistoried residential-cumcommercial building, hence, she requested the Architect to prepare a building plan. Accordingly, on 28.08.2022, the Architect measured the land for preparation of building plan and found that Northern side of plaintiff's land was encroached by the defendants by raising boundary wall and after measurement, it was found that the total encroached area by defendants is 98 ft. 6 inch x 4 ft. equivalent to 8 Chhatak and 34 Sq.ft. more fully described in Schedule 'B' shown in Red Wash in the Map attached to the plaint. Thereafter, the plaintiff confronted the defendants and enquired about the encroachment and it was disclosed by the defendants No.1 and 2 that they have obtained unregistered transfer paper in respect of the above excess land executed by uncle of the plaintiff's father-in-law. The plaintiff, for the first time, came to know about the said encroachment of her land by the defendants on 28.08.2022. The defendants decline to vacate the encroached area in favour of the plaintiff who is rightful owner of the same and entitled for possession thereof, therefore, the suit was instituted claiming relief for declaration of right title and interest of the plaintiff over the suit Schedule 'B' property the land along with recovery of possession of the same. The plaintiff has also asked for perpetual injunction and other reliefs as Court deems fit along with cost.

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4. The petitioners/defendants appeared and filed their written statement and separately, an application under Order VII Rule 11 of the C.P.C. registered as Miscellaneous Case No.788 of 2023 with specific averment that the suit of the plaintiff for possession of

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immovable property or any interest thereon based on her title is governed by the limitation as prescribed in Article 65 appended to Schedule 1 of the Indian Limitation Act, 1963 which is 12 years from the date when the possession of the defendants becomes adverse to the plaintiff. It is further stated that from bare perusal of plaint it appears that the plaintiff has purchased the portion of land after the defendants and within knowledge of the plaintiff, the boundary wall was raised in the year 1975 itself. The plaintiff returned in the year 2006 from Bombay but no objection was raised and even in the year 2007-08, the plaintiff constructed office for her son over area 330 Sq.ft. and got reassessment of Holding Tax without raising any objection about any encroachment of her land. The plaintiff has instituted a hopelessly time barred suit after lapse of 49 years from the date of purchase and cleverly drafted the suit on the ground of knowledge of encroachment on 28.08.2022. The plaintiff has manipulated a false cause of action in order to bring the suit within the period of limitation. Therefore, impugned order passed by the learned Trial Court rejecting the application of the defendants is based on non-consideration and the learned Trial Court has considered upon only to the point that question of limitation herein is mixed question of law and facts, hence, suit cannot be dismissed only on account of bar of limitation. The basic principles of law have been ignored by the learned Trial Court. The learned Trial Court has failed to consider the averments of plaint in its entirety indicating substantial admissions of the plaintiff that she was all along having knowledge about the construction of boundary wall and possession of the defendants over the suit Schedule 'B' property but kept mum. He has also placed reliance upon reported judgment in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)

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through Legal Representatives and Ors., (2020) 7 SCC 366, wherein it has been held that '' if, however, by clever drafting of the plaint, it has created the illusion of a cause of action then it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court. '' 5. On the other hand, learned counsel for the opposite party/plaintiff vehemently opposed the aforesaid contentions raised on behalf of petitioners and submitted that the suit of the plaintiff is filed under Article 65 of the Limitation Act which is also admitted by the defendants for which there is limitation of 12 years commencing from the date when the possession becomes adverse to the plaintiff. Therefore, in the instant suit title of the plaintiff has not been denied by the defendants which has been acquired from registered sale deed through the same vendor from whom the defendants have also purchased the portion of suit property. The defendants can also claim the area which was purchased and mentioned in their registered sale deed and admittedly, the excess area they have encroached which has been described in Schedule 'B' to the plaint. The plaintiff has no knowledge about the such encroachment prior to 28.08.2022. This is not subject matter of any cleverly drafting of the plaint. The petitioners/defendants are, therefore, bound to prove their adverse possession for negating the title of the plaintiff over the suit Schedule 'B' land which cannot be decided without full fledged trial of the case. Therefore, there is no illegality or infirmity in the impugned order calling for any interference by way of this revision which is devoid of merit and fit to be dismissed.

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2025:JHHC:19204

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6. Before imparting my verdict on the rival contentions of the respective parties, it is apposite to extract the provision of Article 65 appended to Schedule 1 of the Indian Limitation Act.

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Description of suit	Period of limitation	Time from which period begins to run
65. For possession of immovable property or any interest therein based on title.	Twelve Years	When the possession of the defendant
Explanation.—For the purposes of this article—		becomes adverse to the
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out ofpossession.		plaintiff.

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7. A bare perusal of the above provision, it is crystal clear that in a suit for possession, based on title, the defendants can only prevent the plaintiff from recovering possession if they can prove that they have been in adverse possession for a continuous period of 12 years. If the defendants do not plead or prove adverse possession, the plaintiff's claim for possession cannot be barred by limitation. It is well settled principle of law that when the plaintiff establishes title to the property (in this case title of the plaintiff not

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disputed), he cannot be non-suited on the ground of limitation unless the defendant proves the adverse possession .

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8. In view of aforesaid discussion, in the instant case, it is quite obvious that plaintiff's suit for recovery of possession is based on title for which limitation period is provided 12 years unless the possession of defendants becomes adverse to plaintiff. Therefore, the burden of proof of adverse possession on the shoulder of defendant and the suit cannot be dismissed exercising the powers under Order VII Rule 11(d) of the C.P.C at this preliminary stage of the proceeding.

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9. I have given anxious consideration to the overall scenario of this case along with impugned order and find no illegality or infirmity in the impugned order calling for any interference. Therefore, this civil revision stands dismissed .

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10. Pending I.As., if any, also stand dismissed.

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(Pradeep Kumar Srivastava, J.)

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Sachin

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Ashok Kumar Lohia Alias Ashok Lohia v. Sharda Devi Modi

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Ashok Kumar Lohia Alias Ashok Lohia v. Sharda Devi Modi

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