Afjal Ali vs Hari Bhuinya And Ors

Sanjay K. Agrawal, J

Heard on the question of admission and formulation of substantial question of law in this second appeal preferred by plaintiff under Section 100 of the Code of Civil Procedure, 1908.

Plaintiff's suit for declaration of title and permanent injunction was dismissed by the trial Court and in an appeal being preferred, it was affirmed by the first appellate Court, against which instant second appeal under Section 100 of the Code of Civil Procedure has been preferred.

Shri Sushil Dubey, learned counsel appearing for the appellant/defendant would submit that both the courts below have concurrently erred in holding that plaintiff has no right, title or interest over the suit property and that give rise to substantial question of law for determination.

The plaintiff claimed the suit land by way of patta Ex.P-2 dated 26.03.1980 and further pleaded that defendants have dispossessed him and it has been allotted to them illegally by the revenue officers and he has perfected his title over the suit land by way of adverse possession.

The trial Court dismissed the suit holding that when the patta was granted in favour of plaintiff, he was minor and, as such, lease granted to the minor is void in view of the law declared by the Privy Council in case of Mohari Bibee v. Dharmodas Ghose8 P.C.J. 374 (P.C.)  and further relied upon judgment of the Patna High Court in the matter of Pramila Bali Das and others Vs. Jogesher Mandal (1918) 3 Patna LJ 518. Plaintiff preferred first appeal there-against. The first appellate court, on re-appreciation of evidence dismissed the appeal.

The plaintiff was minor and the patta was granted to him on 26.03.1980 and the civil suit was filed on 24.07.1996 and, therefore, he had not completed period of 30 years over the government land for claiming title by way of adverse possession and even otherwise the suit for declaration of title on the basis of adverse posses in not maintainable in view of the judgment of the Supreme Court in the matter of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another (2014) 1 SCC 669.

Thus, both the courts below have rightly recorded a finding that the plaintiff has failed to establish title over the suit land, in which I do not find any perversity or illegality and no question of law much less substantial question of law is involved in this appeal.

Their Lordships of the Supreme Court have held that it is not permissible for the High Court to interfere with the concurrent finding of fact recorded by two courts below unless findings are perverse and contrary to law. {See : Aftaruddin (dead) represented through Legal representatives Vs. Ram Krishna Dutta alias Babul Datta and others (2018) 11 SCC 77 & Raj Kumari and another Vs. Ravinder Kumar (deceased) through legal representatives & others (2018) 12 SCC 681 }

Accordingly, the second appeal, being devoid of merit, is liable to be and is hereby dismissed in limine without noticing to the other side.