Badri vs Ram Prabhao Vishwakarma

K.K. Trivedi, J.

Learned counsel for the appellant is heard on the question of admission.

This Second Appeal under Section 100 of Civil Procedure Code is directed against the judgment and decree dated 18.08.2005, passed in Regular Civil Appeal No. 14-A/2002 by the 4th Additional District Judge, Rewa, arising out of the judgment and decree dated 25.01.2001, passed in Civil Suit No. 178-A/1998, by the Civil Judge Class-I, Teothar, District Rewa.

A suit was filed by the respondent/plaintiff No.1 against the appellant as also certain other defendants/ respondents seeking a relief of possession of the land in suit stating inter alia that the respondent/plaintiff was owner in possession of the land in suit which was subsequently taken in possession by the defendant/appellant. It was contended that the appellant had no right to take possession of the said land. The land in fact was belonging to the forefather of the respondent/plaintiff which after the death of said forefather was devolved amongst the legal heirs and subsequently was partitioned amongst the members of the family and the respondent/ plaintiff became the holder of the land right from the year 1961, which fall in his share in partition. Since the land was taken in possession on 01.05.1982, the suit was required to be filed.

The suit filed by the respondent/plaintiff was contested by the appellant on the ground that in fact the land was not belonging to the grandfather of the respondent/plaintiff, on the other hand, the said land was purchased by the appellant in the year 1938 for a consideration of Rs.20/-, and a temporary house was constructed on the said land. A well was also dug on the said land. In 1967 the temporary house has fallen down and, therefore, with the permission from the Gram Panchayat the house was constructed in the year 1978. This is how the appellant/defendant has come in possession of the land in suit. Since he has remained in possession of the land for a long period within the knowledge of the respondent/plaintiff and the suit was not filed for the said purposes within the limitation, the appellant has perfected his title over the land in suit, by adverse possession.

The trial Court after framing the issues, recorded the evidence and passed a decree on 28.01.1999. In an appeal the said decree was set aside and the matter was remitted back to the trial court with a direction to obtain a demarcation report from the Commissioner and then to decide the issue after granting opportunity to the other side for adducing the evidence in that respect. The trial Court after obtaining the commission report granted an opportunity of adducing the evidence to the parties and dismissed the suit. In appeal the Lower Appellate Court reached to the conclusion that the findings recorded by the trial court were erroneous inasmuch as when it was found proved that the appellant has failed to prove perfection of title by adverse possession on the land in suit and has further failed to prove the document of purchase of the land in suit, and when the respondent/ plaintiff has proved the title over the land in suit, the decree of possession should have been granted. Since the appeal is allowed, the decree is granted in favour of the respondent/plaintiff, this second appeal is filed by the defendant No.1.

It is contended by learned counsel for the appellant that firstly the Lower Appellate Court exceeded in exercise of its appellate jurisdiction inasmuch as the relief which was not claimed by the respondent/plaintiff in the suit was granted. When there was no claim made for declaration of title, it was not to be declared that the respondent/plaintiff has the title over the land in suit. It is further contended that the Courts below have not properly appreciated the document of sale of the land in suit and have erroneously held that such a document is not proved though was produced before the Courts. It is also contended that the commission report was not to be taken note of and, therefore, the findings recorded by the Lower Appellate Court are perverse and are liable to be set aside.

First of all neither a decree of declaration is granted by the Lower Appellate Court nor there was any occasion to claim a declaration to that effect as the respondent/plaintiff was, right from very beginning, claiming that he was title holder of the land in suit, which fact was denied by the appellant/defendant on the strength of document of sale. Secondly, no decree of declaration is granted by the Lower Appellate Court. Only a decree of possession is granted by the impugned decree by the Lower Appellate Court. Therefore, it is not correct to say that the relief which is not set forth in the plaint has been granted by the Lower Appellate Court. Such submissions of learned counsel for the appellant are misconceived and erroneous.

The other aspect is that the appellant/defendant was claiming that the land was purchased and by virtue of the said purchase the appellant was in possession of the land. The plea of adverse possession was required to be specifically pleaded in the written statement and was required to be proved. Right from very beginning the claim of the appellant was that the land was purchased and the said document was also placed on record but by appropriate evidence the same was not proved. If the trial Court has not found the said document proved and has though dismissed the appeal the finding was against the appellant and the said finding was required to be called in question by filing an appeal. Even when the first appeal was filed by the respondent/plaintiff, no cross appeal was filed by the appellant challenging the said findings and, therefore, the ground raised in the second appeal is not available to the appellant. If the findings recorded by the trial Court are not assailed in the first appeal, it will not be open for the appellant to challenge the said findings directly in the second appeal. Such submissions of learned counsel for the appellant thus have no force.

Lastly, it has to be seen whether evidence adduced by the appellant was properly appreciated by the trial Court or not. The findings recorded by the trial Court have been tested by the Lower Appellate Court on the basis of evidence available on record. The Lower Appellate Court has found that though the evidence was rightly appreciated but even when it was held that the appellant had not proved his claim, the findings in respect of the respondent/plaintiff were recorded that the respondent/plaintiff was also not able to prove his claim. If such findings are examined, it would be amply clear that the plea raised by the respondent/ plaintiff was to be found proved as though the evidence to that extent was made available yet only because the defendant/ appellant could not proved his claim, the trial Court has refused the relief to the respondent/plaintiff. That was not the correct approach of the trial Court. In such circumstances, if the Lower Appellate Court has decreed the suit of the respondent/plaintiff, it cannot be said that the error of law is committed by the Lower Appellate Court.

In view of the aforesaid, there is no substance in the appeal. No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.