Ramdev vs Mathura Prasad

Sanjay Yadav, J—Heard on admission.

This is defendant''s Second Appeal directed against the Judgment and decree dated 9.9.2014 passed in Civil Appeal No. 33-A/2014 affirming the Judgment and Decree dated 19.10.2012 in Civil Suit No. 90-A/2009.

Plaintiff brought an action for possession and for Rs. 10,000/- as mesne profit in respect of half of Araji No. 265/2 area 2 Bigha 7 Biswa situated South Ward mouza Gram Dehuta Tehsil Raghurajnagar.

Earlier to filing of the suit in question; plaintiff had filed a suit for declaration and title over entire Araji No. 265/2 vide Civil Suit No. 156-A/2006, decreed on 19.12.2009. Where against, a Civil Appeal No. 7-A/2008 was filed and disposed of on 18.8.2008 declaring the plaintiff owner of suit property. The Appellate Court; however, finding that over 1 Bigha 8.50 Biswa the plaintiff could not establish the possession, granted the plaintiff leave for a fresh suit for possession and incidental relief.

The trial Court discarding the defence by the defendant that the suit is barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908, and by negativing the claim by defendants of having perfected the title by being in possession thereof, uninterruptedly over a long period, decreed the suit by relying upon by the Appellate Court in Civil Appeal No. 7-A/2008 as to the title of the plaintiff over suit property stating that the leave having been granted by the Court of Competent Jurisdiction to bring a separate suit for possession, disbelieved the defendant being in uninterrupted possession. The trial Court found-

In Parwatabai Vs. Sonabai and others, (1996) 6 AD 652 : AIR 1997 SC 381 : (1996) 7 JT 661 : (1997) 115 PLR 712 : (1996) 6 SCALE 375 : (1997) 1 SCC 531 : (1996) 4 SCR 571 Supp : (1996) AIRSCW 3751 : (1996) 6 Supreme 669 : it has been held

"4- Article 65 of the Act postulates that for possession of immovable property or any interest therein based on title, when the possession of the defendant becomes adverse to the plaintiff, the suit has to be filed within 12 years. Therefore, when the plaintiffs asserted their title on the basis of succession to the estate of their father, it is for the appellant to prove as to on which date the appellant''s possession has become adverse to the respondents."

In State of Haryana Vs. Mukesh Kumar and Others, AIR 2012 SC 559 : (2012) 1 RCR(Civil) 17 : (2011) 11 SCALE 266 : (2011) 10 SCC 404 : (2011) 6 UJ 4099 : (2012) AIRSCW 276 it is observed by their Lordships:

"31- A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession."

Thus in respect of adverse possession there being specific finding that the defendants have failed to establish their possession Nec Vi Nec Clam Nec Precario.

As to objection regarding the suit barred by the principle under Order 2 Rule 2 CPC, the Appellate Court on 17.4.2014 framed the following issues viz., and remitted the matter to trial Court for a finding on said issue. The trial Court returned the finding on 9.7.2014 that the earlier suit being the suit for declaration and the second suit since was for possession was not hit by Order 2 Rule 2 CPC.

Though it is contended by learned counsel for the defendants that there is a gross error of law in the finding by the trial Court that the subsequent suit being for possession only was not hit by Order 2 Rule 2 CPC.

In order to make Order 2 Rule 2 applicable the defendant must satisfy the following conditions, viz., (i) the previous and second suit must arise out of the same cause of action, (ii) The cause of action on which the subsequent cause is founded should have arisen to the claimant where he sought for enforcement of the first claim before any Court, (iii) both the suits must be between the same parties and (iv) the earlier suit must have been decided on merits. That a subsequent suit for possession after the decree of declaration of title is not hit by Order 2 Rule 2 because a cause of action for declaration of title is not the cause of action for possession.

Viewed thus there appears no legal infirmity in the conclusion arrived at by both the Court as would give rise for substantial question of law as would warrant an indulgence.

Consequently, Appeal fails and is dismissed. No costs.