A single judge dismissed part of a second appeal on admission. The court held the appeal involved a different section of the decree than those challenged in two concurrently admitted appeals. It found no substantial question of law.
The second appeal was dismissed at the admission stage with no substantial question of law involved.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.199 of 2009 ====================================================== Ram Prakash Kumar & Ors .... .... Appellant/s Versus Gopal Kumar & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Purushottam Kumar Das For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 14 05-12-2012 1. Heard the learned counsel for the parties on interlocutory application No.4832 of 2012. 2. This application has been filed by the appellant for substitution of the legal representatives of the deceased appellant No.19. The application is within time. Accordingly, it is allowed and the legal representative of the deceased appellant No.19 are substituted in pace of the deceased respondent No.19 after deleting his name. Vakalatnama has already been filed on behalf of the substituted appellants. Thus, I.A. No.4832 of 2012 is allowed. 3. Heard the learned counsel, Mr. Madhav Rai on behalf of the appellant and the learned counsel Mr. Ganapathy Trivedi
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appearing on behalf of the respondent No.1 to 26 under Order 41 Rule 11 of the Code of Civil Procedure.
4. The plaintiffs-appellants appellants have filed this second appeal against the Judgment and Decree dated 22.12.2008 passed by the learned 3rd Addl. District Judge, Naugachchia in title appeal No.16 of 2008 whereby the lower appellate Court dismissed the appeal and thereby confirmed the Judgment and Decree dated 20.12.2007 passed by learned Subordinate Judge IInd, Naugachchia in title suit No.2 of 1996.
5. The plaintiffs-appellants filed the aforesaid suit praying for declaration of title over the suit property and further prayed that the revisional survey record in the name of the defendants are wrong and not binding on the plaintiff. The plaintiff’s claimed the aforesaid relief alleging that in the cadastral survey, the lands were recorded in the name of their ancestor but in revisional survey operation, the suit property has wrongly been recorded in the name of the defendants. According to the plaintiffs, the suit property belonged to the plaintiffs.
6. The defendants filed several sets of written statement. Every set of the defendants had separate case of their own. The defendant No.1 to 19 and 36 filed their written statement alleging that they are either purchaser directly from the ancestor of the
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plaintiffs or are purchaser from the auction purchaser and the purchases have been made by them through registered sale deed by ext.‘B’ series as far back as in the year ranging from 1925 to 1952. Delivery of possession was obtained through process of Court and after delivery of possession, they are coming in possession on payment of rent and the suit land has been rightly recorded in their name in the revisional survey record of right.
7. The learned counsel, Mr. Rai, appearing on behalf of the appellant firstly submitted that the two second appeals, i.e., second appeal No.190 of 2009 filed by some of the defendants and second appeal No.174 of 2009 filed by other defendants have already been admitted by this Court by terms of order dated 19.6.2012 and 23.11.2012 respectively. This second appeal is directed against the same Judgment and Decree, therefore, this second appeal may also be admitted.
8. So far the merit of the case is concerned, the learned counsel submitted that the only defence of these defendant No.1 to 19 and 36 is that they are purchasers either from the ancestors of the plaintiffs or that they purchased the property from the auction purchases but there is nothing on record to show that in fact delivery of possession was given and they came in possession of the property. Alternatively, the learned counsel submitted that
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even if they are on record, those process have been obtained by the defendants Balabala without notice to the defendant, therefore, the title or possession of the plaintiff is not affected. The plaintiffs are still continuing in possession of the property as such the entry made in the revisional survey record of right is wrong but both the Courts below without considering these facts, only on the basis of the sale deeds or auction purchase sale certificate recorded the finding that the defendants have acquired title and possession over the suit property.
9. The learned counsel further submitted that the trial Court dismissed the plaintiff suit in toto. However, the lower appellate Court granted a part decree in favor of the plaintiffs and dismissed the suites only with respect of defendant No.1 to 19 and 36 only on the ground that the defendants have not taken the plea of adverse possession whereas the defendant No.1 to 19 and 36 have taken the pleas on adverse possession. According to the learned counsel only on the basis of this ground, the plaintiff suit has been dismissed by the lower appellate Court partly against the defendant No.1 to 19 and 36. The learned counsel submitted that there is neither pleading of adverse possession nor any evidence adduced by the defendant No.1 to 19 and 36 in support of the acquisition of title by adverse possession nor there is any finding
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recorded by the lower appellate Court that they have acquired title by adverse possession. The lower appellate Court on this ground alone could not have dismissed the plaintiff’s suit.
10. The learned counsel, Mr. Trivedi, appearing on behalf of the respondent submitted that the trial Court as well as the lower appellate Court considered the documentary evidences produced by the defendant No.1 to 19 and 36 i.e. the registered sale deeds of the year ranging from 1925 to 1952 ext.‘B’ series. The ext. ‘G’ series which are sales certificate issued by the Court and the delivery of possession granted by the Court in execution case No.1977 and 1927 were produced and considered by both the Courts below and both the Courts below recorded the finding that the defendants have been able to prove their title and possession. According to the learned counsel, the only claim of the plaintiff is based on the entry in the cadastral survey record of right and the plaintiff never pleaded about the filing of the money suit or the execution case or sale by their ancestor or the delivery of possession given through the Court. The learned counsel further submitted that the lower appellate Court has not dismissed the plaintiff’s suit only on the ground that the defendant No.1 to 19 and 36 have taken the plea of adverse possession.
11. From perusal of the trial Court Judgment as well as the
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lower appellate Court Judgment, it appears that the lower appellate Court at paragraph 12 has considered the documents filed by the defendant No.1 to 19 and 36, i.e. ext.‘G’ series, the sale certificates, ext.‘B’ series the sale deeds ranging from the year 1925 to 1952. The Courts also considered ext. ‘L’ the delivery of possession in money execution case No.1977 of 1927. After considering these documents, the lower appellate Court recorded finding that the original defendant No.1 to 19 have got title over the lands mentioned in their written statement regarding village Nagarpada and Dharmpur Ratti. At paragraph 15, the lower appellate Court recorded the finding that the defendant No.,1 to 19 and 36 have proved their possession over the suit property. It may be mentioned here that the plaintiffs have not prayed for recovery of possession of the suit property and the lower appellate Court has recorded the finding that the defendants are in possession of the said suit property claimed by them. Therefore, the plaintiff’s suit is also barred under Section 34 of the Specific Relief Act.
12. So far the submission for the appellant that the lower appellate Court has dismissed the plaintiff’s suit only on the ground that the defendant No.1 to 19 and 36 have taken a plea of adverse possession is concerned, from perusal of the record of the Judgment of the lower appellate Court, I do not find so. In
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paragraph 15 of the Judgment while stating the case of the parties in one line, the lower appellate Court has only stated that none of the defendants except defendant No.1 to 19 have taken plea of adverse possession and it is not the fact that on that ground, the plaintiff’s suit has been dismissed. Therefore, I do not find any substance in the submission of the learned counsel for the appellant. In other words, it can be said that there is no finding recorded by the Court that the defendant No.1 to 19 and 36 have acquired title by adverse possession. On the other hand as stated above on the basis of the ext. ‘B’ series ext.‘G’ series and ext.‘L’, the Courts below have recorded categorical finding that the defendant No.1 to 19 and 36 have acquired title and possession over the disputed land.
13. So far the submission of the learned counsel for the appellant that all the orders passed by the Court in money suit or money execution case are without the knowledge of the appellant is concerned, it may be mentioned here that all these processes are related to the process of the Court. Therefore, the validity and genuineness is presumed in favour of the defendants. It is for the plaintiff to prove that in fact no notice was served on them and that in fact they came to know recently about the said proceedings but neither there is any pleading nor any evidence has been
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produced by the plaintiff. Therefore, at this stage in second appellate jurisdiction, no such plea can be considered or finding can be recorded.
14. In the case of M. Meenakshi Vs. Metawin Aggrawal 2006 (7) SCC 470, the Apex Court considering earlier decision and further in the case of Sneha Gupta Vs. Devi Swaroop and Ors 2009 (6) SCC 194, it has been held that it is well settled principle of law that even void order is required to be set aside by competent Court of law in as much as order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not nonest. An order cannot be declared to be void in collateral proceeding and that too in the absence of the authors thereof. In the present case, therefore, on the basis of the submission that no notice was served or that the plaintiff have no knowledge or that in spite of the said order passed in execution case or sale certificate, the plaintiffs are coming in possession of the property cannot be relied upon as no steps were taken by plaints against the sale deeds or court proceedings.
15. So far the submission of the learned counsel for the appellant that two other second appeals have been admitted is concerned, it may be mentioned here that the case of the defendants who have filed these second appeals is entirely
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different than the case of the present defendant No.1 to 19 and 36. In both the aforesaid second appeals, the other part of the decree is under challenge by the defendants. The plaintiffs appellants have challenged the other part of the decree which is against them and a part of the decree which is in favour of the defendant No1 to 19 and 36 has got no concern with the part of the decree which is against other defendants who are appellants in other two second appeals.
16. Therefore, in my opinion, only because the two second appeals filed by the other defendants against part of the decree which is in favor of the plaintiff, this second appeal cannot be admitted. Thus, no substantial question of law is involved for consideration in this second appeal. Accordingly, this second appeal is dismissed at the admission stage itself.
(Mungeshwar Sahoo, J)
Sanjeev/-
2 issues framed by the court
Whether the second appeal can be admitted given that the case involves parties from two separate and distinct decrees.
Whether the dismissal of the second appeal is justified on the ground of lack of substantial question of law.
Colour shows how this judgement treated each authority
M. Meenakshi Vs Metawin AggrawalExplained¶14
M. Meenakshi Vs Metawin Aggrawal 2006 (7) SCC 470 · Who else cites this
Sneha Gupta Vs Devi SwaroopExplained¶14
Sneha Gupta Vs Devi Swaroop and Ors 2009 (6) SCC 194 · Who else cites this
Ram Prakash Kumar & Ors
Gopal Kumar & Ors
Mungeshwar Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
