Ramishwar And Ors vs Dilbasia And Ors

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/LRs. of the plaintiff under

Section 100 of the CPC against the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree by which

learned trial Court dismissed the suit of the plaintiff finding no merit.

Mr. J.K. Shastri, learned counsel for the appellants/LRs. of plaintiff would submit that both the Courts below have committed illegality in dismissing

the suit of the plaintiff and not granting decree in his favour as original plaintiff â€" Mohar Say has already purchased the suit land by sale deed dated

21/06/1974 from defendant No. 1 through his guardian uncle Ugan Gond and has also perfected his title by way of adverse possession, as such, the

appeal deserves to be admitted by formulating substantial question of law for determination.

The suit land was originally held by defendant No. 1 Dilbasiya, daughter of Bhola Gond. It is a case of the plaintiff that defendant No. 1's guardian

uncle namely Ugan Gond sold the suit land in his favour by sale deed dated 21/06/1974 for legal necessity as he required money for maintenance of

defendant No. 1 and since then, plaintiff has been in continuous possession of the suit land and he has therefore, perfected his title over the suit land

by way of adverse possession to which defendant No. 1 set up a plea that the said transaction is not a sale transaction and defendant No. 1's guardian

uncle Ugan Gond had no right to sell the suit land without the leave of the Court under Section 8(2) of the Hindu Minority and Guardianship Act, 1956.

Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit holding that plaintiff has failed to prove his

title over the suit land as he has not perfected his title by way of adverse possession and defendant No. 1's uncle Ugan Gond had no right and title to

alienate the suit land in favour of the plaintiff without the leave of the Court when she was a minor, as such, the sale is not a real sale which was also

affirmed by learned first appellate Court in the appeal preferred by the plaintiff under Section 96 of the CPC.

Admittedly, the suit land was held by defendant No. 1 Dilbasiya and both her parents died when she was a minor, thereafter, she was looked after

by her uncle namely Ugan Gond, who without the leave of the Court, sold the suit land in favour of the plaintiff by sale deed dated 21/06/1974. Both

the Courts below did not accept the said sale transaction to be a real and outright sale for the reason that during that time, defendant No. 1 was still a

minor and without taking the leave of the Court, the suit land could not have been alienated by her guardian uncle Ugan Gond and since, defendant

No. 1 belongs to 'abÂ​ original tribe', the plea of adverse possession is not available to the plaintiff.

Both the Courts below concurrently recorded a finding that the alienation made by defendant No. 1's guardian uncle in favour of the plaintiff on

21/06/1974 without the leave of the Court is in violation with Section 8(2) of the Act of 1956 and defendant No. 1, being a member of the 'abÂoriginal

tribe', the plea of adverse possession is not available to the plaintiff and even otherwise, the plea of adverse possession was not found established by

the two Courts below. The said finding recorded by both the Courts below is a finding of fact based on evidence available on record which is neither

perverse nor contrary to the record and does not involve any substantial question of law for determination.

The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).