The High Court of Patna set aside the judgement and decree of the appellate court as it appears that the appellate court has failed to exercise it’s power and jurisdiction
TITLE- Shree Kishun Rai & ors Vs Ram Dulari Devi & ors
DECIDED on-22/12/2023
SA+402/2000
CORAM-HON’BLE JUSTICE KHATIM REZA
FACT
As per the facts of the case one Lalit Bhagat Had five sons who was father of the Husband of the Original plaintiff who had acquired some lands from his own income.During the lifetime of Lalit Bhagat Rai,Deorah Rai died in the year 1958,leaving behind his widow namely Pan Kuer(plaintiff) and a sib Jugal Rai (defendant no.1).All the son got ⅕th share and had started residing separately.The Plaintiff is the widow if Deorah Rai and mother of Defendant no.1 ,2 and 3 are the alleged vendees of Defendant no.1.As further case of the plaintiffs is that Deorah Rai husband if the original plaintiff was in police service and died in the year 1959,leaving behind plaintiff and his minor son,Viz., Jugal Rai (defendant no.1) and after the death of husband the plaintiff became the Karta of her family and looked after her son and carried business in the name of her husband and constructed a pucca house.As Defendant no.1 joind army service in the year 1965, but never sent a single farthing to the plaintiff,during the course of the service.Further plaintiff state that she got marriage of his son solemnized with one lailawati Devi but her son become addict to ganja,bhang and wine etc and became a man of bad character and was not taking care of the plaintiff and was issuesless and due to his bad habits,his wife Lilawati deserted him and solemnized another marriage.While she was working in her field she was objected by Defendant no.2 and 3 because her son Jugal Rai had executed a sale deed in 30/12/1974 regarding a suit land in favour of the defendant no.2 and 3.Havind Knowledgeable about the same plaintiff inquired the matter from her son Jugal Rai who denied the same and on inquiry from Registry office she became aware that a sale deed was executed which was forged and fabricated one in the manner described in the plaint.The Defendants never came in possession over the suit land nor any title accured to them in the basis of the said sale deed.Lastly the plaintiff requested to the defendants on 28/02/1984 to which they did not agree hence the necessity of the suit. Where the plaintiff has prayed for setting aside the sale deed dated 30/12/1974 executed by Defendant no.1 in favour of Defendant no 2 and 3 and for confirmation/recovery of possession over the land in suit.On Summons, Defendant no.2 and Defendant no.3 have appeared and filed joint written statement.Apart from technical objection the factum of partition amongs the sons of Lalit Bhagat Rai and the plaintiff is the wife of Deoraj Raj have been admitted by these Defendants.These defendants have denied the facts.However it is pertinent to mention that despite the summons jugal Rau has not appeared in the suit nor filed any written statement.On analysing the evidence and materials on record the learned trial court plaintiff has got no valid cause of action of the suit.Therefore the plaintiff is not entitled to any relief in the suit.
Law Involved/Legal Provisions
As this is the second Appeal filed by the plaintiffs against the Judgement and Decree on 25/07/2000 passed by the learned 1st Additional District Judge,Saran in Title Appeal no.43/1988whereby learned lower appellate court has reversed the Judgement and decree dated 28/02/1988 title suit.
Issue framed
Whether the order passed by the learned trial court is valid ?
The Court analysis and decision
As Per the Hon’ble court after hearing both the parties observed and state that the appellant court has failed to exercise it’s power and jurisdiction.The Trail Court has rightly held that the plaintiff is not entitled to recovery of possession. So far findings with regard to the case of adverse possession is concerned, the appellate court by making out a third case neither any claim of adverse possession by the plaintiff nor by the defendant assumed that when the sale deed is void and illegal,The vendees possession automatically become adverse to the plaintiff.This Finding is completely erroneous and on wrong interpretation of law.Further the suit is also barred by law of limitation and the finding given by the learned Trial Court attracting Article 59 of the Limitation Act, in the instant matter, whereby the period of limitation is three years is correct and the finding of the trail court us affirmed whereas the finding on this score by the Learned appellate Court invoking Article 65 of the Limitation Act is erroneous and perverse and therefore the judgement and decree of the appellate court us set aside.The second appeal had got merit and accordingly it is allowed.
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