2024 INSC 9

Civil Appeal No.7502 of 2012 Page 1 of 9

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 7502 of 2012

BRIJ NARAYAN SHUKLA (D)

THR. LRS. …APPELLANT(S)

VERSUS

SUDESH KUMAR ALIAS

SURESH KUMAR (D)

THR. LRS. & ORS. …RESPONDENT(S)

J U D G M E N T

VIKRAM NATH, J.

1. The plaintiff is in appeal assailing the correctness

of the judgment and order dated 15.05.2012

passed by the Lucknow Bench of the Allahabad

High Court allowing Second Appeal No.202 of

1980, Sudesh Kumar and others vs. Brij Narayan

Shukla and others, whereby, both the judgments

of the First Appeal Court and the Trial Court were

set aside and the suit of the plaintiff appellant

Civil Appeal No.7502 of 2012 Page 2 of 9

was dismissed on the ground of limitation being

barred by time.

2. Dispute relates to an area of 3500 sq. ft. (70 ft. x

50 ft.) (2 Biswa 12 Biswani) of Plot No.1019

situated in Village Hardoi within the limits of

Nagar Palika Hardoi, Uttar Pradesh. The plaintiff

claimed title through a registered sale deed dated

21.01.1966 from the erstwhile Zamindar Rai

Bahadur Mohan Lal. They also claimed to have

received possession pursuant to the sale deed. It

is also relevant to mention that the land

purchased was an open piece of land. In 1975,

when the appellant tried to raise the construction

over the land purchased, the defendants objected

and caused hindrance giving rise to the filing of

the suit in question on 28.05.1975, registered as

O.S.No.161 of 1975 praying for the relief of

injunction with alternative relief for possession.

3. The defendant respondent filed their written

statement primarily alleging that there had been

prior proceedings between Rai Bahadur Mohan

Lal and his co-sharers and their tenants

Civil Appeal No.7502 of 2012 Page 3 of 9

(ancestors of the respondent) in the year 1944

where a suit was filed for arrears of rent with

respect to Plot No.1019, 1022 and 1023.

3.1 Further under the settlement between the

Zamindar and co-sharers, the land in question

came to Siddheshwari Narain and Deep Chandra

in a private partition and as such these co-

sharers became the owners of the land.

3.2 The defendant respondents having continued in

possession at the time of abolition of Zamindari,

became the owners.

3.3 Lastly, it was contended that soon after the sale

deed of January, 1966 in favour of plaintiff

appellant, there was proceedings under section

145 of the Code of Criminal Procedure, 1973

1 in

May, 1966. In the said proceedings, it was found

that the defendant respondents were in

possession.

1

CrPC

Civil Appeal No.7502 of 2012 Page 4 of 9

4. Both the parties led evidence, both documentary

and oral. The Trial Court found the plaintiff

appellant to be the owner of the land in dispute

as also in possession and accordingly decreed the

suit for injunction vide judgment dated

19.09.1979.

5. The Trial Court had placed reliance upon the sale

deed, the Mutation and the Khasra and Khewat

entries. Further, the Trial Court had held that the

proceedings under section 145 CrPC would not

be of any benefit to the defendant respondents as

it was not clear from the material placed that the

said proceedings related to the land in question.

6. The defendant respondent preferred appeal

before the District Judge which was registered as

Civil Appeal No.14 of 1979. The District Judge,

Hardoi, vide judgment dated 29.11.1979

dismissed the appeal. It however did not agree

with a couple of findings recorded by the Trial

Court and accordingly, recorded its own findings.

According to the appellate court, the proceedings

under section 145 CrPC were related to the land

Civil Appeal No.7502 of 2012 Page 5 of 9

in dispute and that the possession of the

defendant respondent was found over the land in

dispute. It accordingly decreed the suit for

possession and not for injunction as had been

done by the Trial Court. The Appellate Court

further held that the plaintiff-appellants were the

owners of the land in dispute and they had been

successful in establishing their title.

7. Another finding recorded by the Appellate Court

was that the land in dispute was a non-

agricultural land and there was no question of

abolition of Zamindari with respect to the said

land and therefore the claim of the defendants of

becoming the owners on the abolition of

Zamindari was not correct. It further found that

the suit for arrears of rent filed in 1944 was with

respect to some other land and not the land in

dispute in as much as the suit land was vacant

open piece of land whereas the 1944 suit for

arrears of rent was with respect to the house of

the defendants. Even the plot areas in the two

suits were different. The Plot No.1019 being a

huge piece of land where as the plaintiff appellant

Civil Appeal No.7502 of 2012 Page 6 of 9

had purchased only a part of it, they had derived

valid title from the Zamindars, the erstwhile

owners.

8. It accordingly held that the period of 12 years for

perfecting rights on the basis of adverse

possession would commence from 1966 and the

suit having been filed in 1975 was well within

time.

9. The defendant respondent preferred Second

Appeal before the High Court which was

registered as Second Appeal No.202 of 1980. It is

this appeal which has been allowed by the

impugned judgment giving rise to the present

appeal. The High Court dismissed the suit of the

appellant on the ground of limitation as

according to it, the defendant respondent had

matured their rights or rather perfected their

rights by adverse possession having continued so

since 1944 when the first suit for arrears of rent

was filed. We are, however, of the firm view that

the High Court fell in serious error in holding so,

for the following reasons:

Civil Appeal No.7502 of 2012 Page 7 of 9

9.1 It has not dealt with the findings recorded by the

Trial Court and the First Appeal Court with

respect to the issue of Limitation and the

evidence considered by them.

9.2 The High Court was hearing the Second Appeal

under section 100 of Code of Civil Procedure,

1908

2 and it having reappreciated the findings to

disturb findings of fact, committed an error.

9.3 The High Court has not recorded any finding

that the plaintiff appellants were not the owners

or that they have failed to prove the ownership.

9.4 The suit of the year 1944 was for the arrears of

rent and not relating to any dispute of

possession. The defendant respondents were

tenants and therefore their possession was

permissive as against the then landlords. There

was no question of them claiming any adverse

possession from 1944.

2

CPC

Civil Appeal No.7502 of 2012 Page 8 of 9

9.5 In our considered view, the plaintiff appellants

got their ownership/title under the registered

sale deed on 21.01.1966. The dispute for

possession vis-à-vis the defendant respondents

would arise only after the said date and not on

any date prior to it. Admittedly from the date of

the sale deed, the suit was filed within the period

of 12 years in May, 1975. Even if it is assumed

that the defendant respondents were in

possession from prior to 1944, their possession

could not have been adverse even to the

Zamindars as they were tenants and their

tenancy would be permissible in nature and not

adverse. There were no proceedings for

possession prior to 1966.

9.6 Further, the first appellate court having recorded

a specific finding that the land in suit was not

covered by Zamindari Abolition as it was non-

agricultural land, the claim of ownership from

the date of abolition of Zamindari was also

without any merit. The finding has not been

disturbed by the High Court. The defendant-

respondents thus having failed to establish their

Civil Appeal No.7502 of 2012 Page 9 of 9

title, would have no right to retain the

possession.

10. Accordingly, the appeal is allowed, the impugned

judgment and order of the High Court is set aside

and that of the First Appellate Court decreeing

the suit for possession is maintained.

11. There shall be no order as to costs.

12. Pending application(s), if any, is/are disposed of.

……………………………………J.

(VIKRAM NATH)

……………………………………J.

(RAJESH BINDAL )

NEW DELHI

JANUARY 03, 2024