Sushila And Ors vs Hemwati And Ors

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/defendants under Section 100 of

the CPC questioning the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree of the trial court by

which suit filed by the respondents/plaintiffs for possession based on title has been decreed by the trial court.

Mr. Avinash K. Mishra, learned counsel for the appellants/defendants would submit that both the courts below were absolutely unjustified in

decreeing plaintiffs' suit for possession based on title by recording a finding which is perverse to the record, as it ought to have been held that

defendants have perfected their title over the suit land by way of adverse possession, as such, this appeal deserves to be admitted for final hearing by

formulating substantial question of law for determination.

Original plaintiff  Digamber Nath and father of original defendants  Manohar Nath, both were brothers. Manohar Nath firstly filed a suit for

partition against Digamber Nath bearing civil suit No. 23A/67 in the Court of Civil Judge ClassÂI vide Ex. P/6, wherein by judgment dated 10.12.1968,

it was held that Digamber Nath has become owner of the suit land by adverse possession as he is in open and peaceful possession of the suit land

since 1946, and Manohar Nath is not entitled for partition. Thereafter, Manohar Nath preferred civil appeal No. 8A/72 which was dismissed on

21.11.1974 vide Ex. P/8 and the second appeal No. 224 of 1975 preferred by Manohar Nath is said to have been dismissed, as such, the title of

original plaintiff Digamber Nath over the suit land has become final.

Thereafter, on 01.05.1985, original plaintiff Digamber Nath filed the instant suit from which this appeal has arisen, for possession based on title

stating inter alia that in civil suit No. 23A/67, it has been held that he is in possession of the suit land and has perfected his title by adverse possession,

but after the death of defendants' father Manohar Nath in the year 1975, the present defendants dispossessed him from suit land bearing khasra No.

182 area 2.16 acres, khasra No. 230/1 area 0.30 acre and khasra No. 236 area 3.71 acres to which they are entitled for possession. Defendants set

up a plea of adverse possession by filing counter claim.

Learned trial court, upon appreciation of oral and documentary evidence on record, dismissed the suit holding that with respect to the suit land,

original plaintiff Digamber Nath has been declared as the title holder in a civil suit filed by defendants' father Manohar Nath and it has been upheld by

the first and second appellate court, as such, plaintiffs' title is fully established, and negatived the plea of adverse possession set up by the defendants.

On appeal being preferred by the defendants, learned first appellate court agreed with the judgment and decree of the trial court and thereby

dismissed the appeal.

It is quite vivid that title of plaintiff over the suit land on the basis of adverse possession was held by trial court in first round of litigation initiated by

defendant’s father Manohar Nath vide Ex. P/6 and duly affirmed by first and second appellate court vide Exhibits P/8 and P/11. In that view of

the matter, the two courts below have rightly decreed the suit of the plaintiff and held that he has already been declared as the title holder by the

jurisdictional civil Court in a previous suit instituted by defendants and that judgment holding the plaintiff to be the titleÂholder has become final, as

such, both the courts below did not err in holding that defendants have failed to establish their title by adverse possession over the suit land as in the

previous suit, title of Manohar Nath has been negatived and the title of plaintiff Digamber Nath has been found by the Court. As such, the finding

recorded by the two courts below that plaintiffs are the title holders of the suit land and are therefore, entitled for possession is a finding of fact based

on evidence available on record which is neither perverse nor contrary to record.

I do not find any substantial question of law involved in this second appeal and it is accordingly dismissed in limine without notice to the other side.