Suresh Patel (dead) through L.Rs. vs Smt. Chhitiya and Others

R.S. Jha, J.—Heard on the question of admission.

The appellants have filed this appeal being aggrieved by the judgment and decree dated 25.10.2013 passed by the Additional District Judge, Amarpatan in Civil Appeal No. 66-A/2010 whereby the judgment and decree dated 09.08.2010 passed in Civil Suit No. 23-A/2009 by the Second Civil Judge, Class-II Amarpatan has been affirmed and confirmed and the suit filed by the respondents-plaintiffs for declaration of title and possession has been decreed.

It is submitted by learned counsel for the appellants that the appellants were in possession of the property in question on the strength of Will executed in the year 1985 by the original owner of the property. It is submitted that the suit was infact filed in the year 2009 and was therefore barred by limitation but the Courts below have not taken into consideration that aspect and thus committed perversity. Learned counsel also submits that the appellants were in possession of the suit land since 1986 and therefore have perfected their title on account of adverse possession but the Courts below have rejected the said defence of the appellants, which is contrary to law. It is submitted that the findings recorded by the Courts below suffer from perversity, hence this appeal.

Having heard learned counsel for the appellants, it is observed that both the Courts below have taken into consideration the fact that the alleged will of the year 1985 was for the first time produced before the Revenue authority in the year 2005 and on that basis for the first time the appellants'' name were mutated in the revenue record by an ex parte order dated 23.09.2005. The Court below has recorded a finding that the plaintiffs who are the daughter of the deceased came to know about the aforesaid act of the appellants after the death of their mother in the year 2005 on 25.12.2008 and thereafter they filed a suit. By recording the aforesaid fact, the Courts below have held that the suit filed by the plaintiffs/respondents is not barred by limitation. The Courts below have also recorded a concurrent finding to the effect that after the death of original owner his widow being alone permitted the appellants to cultivate the land and therefore the possession of the appellants was not open, hostile and adverse to that of mother of the respondents but was in the nature of permissive possession. The Court below has also observed that the defence of the adverse possession which is necessary to be pleaded and proved in specific terms in the written-statement was not taken-up by the appellants in the suit but was sought to be taken-up by filing an application for amendment in the first appeal. The First Appellate Court has on that count rejected the claim of the adverse possession in the absence of any pleading and proof in the written-statement and before the Trial Court.

Having perused the impugned judgments of the Courts below and the record, I am of the considered opinion that the aforesaid findings recorded by the Courts below are based on proper appreciation of the oral and documentary evidence on record and do not suffer from any perversity. The application of law in the facts of the case by the Courts below is also proper. In the circumstances, it is apparent that there is no perversity in recording the findings against the appellants by the Courts below. I do not find any reason to interfere in the concurrent findings of fact recorded by the Courts below as no substantial question of law arises for adjudication.

The appeal being meritless, is accordingly dismissed.