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Judgment
Honourable Mr. Justice Shailesh Kumar Sinha
The above second appeal is preferred against the judgement and decree dated 17.10.1996 by the Additional District Judge, Nawgachia in Title Appeal No. 86 of 1994 confirming the judgement and decree dated 30.09.1994 in Title Suit No. 113 of 1984 whereby the issue of title over the suit land was decided in favour of the plaintiff, however, the suit was dismissed on the ground of limitation. The plaintiffs appellants filed the above suit for declaration of their right, title and interest as also the possession over the suit land with a further prayer to declare the sale deed dated 23.08.1973 executed by the defendant Ist party in favour of the defendant 2nd party as null and void. The trial court rejected the defence case of the oral sale in favour of the defendant Ist party. The claim of right, title and interest as also the possession over the suit land decided in favour of the plaintiffs. The suit was dismissed on the ground of limitation taking note of the fact that the suit was filed on 17th of April 1984, whereas the sale deed in question was dated 28th of May 1973, holding the suit as barred under Article 100 of the Limitation Act. The plaintiffs being aggrieved by dismissal of the suit preferred the aforesaid Title Appeal No. 86 of 1994. The lower appellate court while considering the appeal did not interfere with the findings of the trial court, as appeared from paragraph -8 of the judgement and decree under the appeal. However, while discussing the evidence on the question of title accepted the defendant''s case of oral sale as also affirmed the decree of the Trial Court dismissing the suit on the ground of limitation. The plaintiff has preferred the Second Appeal against the judgement and decree of the lower court. While admitting the above second appeal, this Court formulated the following substantial question of law vide order dated 23.08.2001 is quoted below -
Whether both the court below had committed error in deciding the limitation matter in its proper prospective?
Whether the Appellate Court has committed further error in coming into the factual aspects regarding title of the plaintiffs and that of the defendants when the title of the plaintiffs being confirmed by the court had never been challenged from the side of the defendants either by filing cross appeal or by filing any further appeal?
Any other substantial questions of law may be raised at the time of hearing of the appeal.
The plaintiff''s case in short is that the suit land originally recorded in the name of Nathan Gorhi @ Nathan Sah father of the plaintiff No. 1 who came in possession after the death of his father. At the instance of one Nageshwar Jha, proceeding u/s 145 of the Code of Criminal Procedure initiated in respect of the suit land which ended in his favour. In the Revisional Survey, Madhav Sah plaintiff No. 1 was found possession and as such, his name was recorded. The further case is that the suit land was illegally transferred in favour of the defendants 2nd party by registered deed of sale dated 23rd of August 1973 by one Manorama Devi related to said Nageshwar Jha, however, defendant 2nd party who got his name mutated behind the back of the plaintiffs. The plaintiffs could learn on 02.02.1984 about the aforesaid transfer when the Circle Officer refused to accept the rent from the plaintiffs as such, the aforesaid suit was filed. However, during the pendency of the suit, plaintiff was illegally dispossessed and, therefore, relief for recovery of possession was also prayed for.
The case of the defendants 2nd party in short is that they are in possession after purchasing the suit land from the aforesaid Manorma Devi. The 2nd party claimed that the suit land as mentioned in the schedule of the plaint were orally sold to one Chulhai Kuer with respect to plot No. 3032 for Rs. 10/- and Plot Nos. 3040 and 3041 for Rs. 15/- in favour of one Mashahru Sah and as such, the aforesaid purchaser came in possession over the suit land. The further case is that the raiyti parcha was issued in respect of Plot No. 3032 in favour of Chulhai Kuer (Exhibit - C) which shows the transfer of land by oral sale in his favour. The plaintiff since interfered with the possession the proceeding u/s 145 of the Cr.P.C. initiated which was decided in favour of the defendants Ist party. In the other words, the defendant''s case is of oral sale by the original recorded tenant Nathan Gori @ Sah followed by possession.
The Trial Court considering the oral as also the documentary evidences on the record accepted the claim of plaintiff''s title and accordingly, decided in his favour, however, dismissed the suit as barred by limitation. The Lower Appellate Court while agreeing with the findings of the trial court with respect to the limitation also accepted the case of oral sale as claimed by the defendant. The Appellate Court, however, considering the respective case of the parties in the end declined to interfere with the judgement and decree of the lower court vide paragraph 8 of the judgement which is quoted below :-
And as such the finding and judgement of the lower court in the light of above circumstances, and evidence both oral and documentary, is not to be interfered with and accordingly the appeal is dismissed but under the circumstances without cost.
Learned Counsel for the appellants submits that the appellate court is not justified in going into the question of title on appeal preferred by the plaintiffs against the part of the decree of the lower court whereby the suit was dismissed on the ground of limitation, although the title in favour of the plaintiffs. It is further submitted that the suit is not barred by limitation as the correct provision of Limitation Act applicable in the instant case is article 65 of the Limitation Act. It is further submitted that as on the date of the suit the plaintiff was having a title and possession over the suit land and in this connection relied upon a decision of the Supreme Court in the case of Md. Mohammad Ali (Dead) by Lrs. Vs. Sri Jagadish Kalita and Others, as also the case of Ram Swaroop Singh and Others Vs. Badri Narain Singh and Others, .
Learned Counsel for the appellants further submits that the appellate court did not set aside the findings of judgement and decree of the trial court with respect to the title in favour of the plaintiffs and as regards the limitation, it is submitted that Article 65 of the Limitation Act 1963, the suit could had been filed within a period of 12 years. The sale deed in question was executed on 23rd of August 1973 (Exhibit -E) and the suit having been filed within a period of 12 years from the oral sale, the same could not had been dismissed, as barred by limitation. It is accordingly, submitted that the findings of the trial court upholding the title of the plaintiffs be affirmed and further held that the suit is not barred by limitation.
On the other hand, Learned Counsel for the respondents submits that although the defendants did not prefer any appeal against the judgement and decree of the trial court, however, interference with the findings of the trial court with respect to the title and upholding the dismissal of the suit on the ground of limitation cannot be faulted if materials are available on record in view of the provisions of Rule 33 Order 41 of the Code of Civil Procedure. In this connection, relied upon a decision of the Supreme Court in the case of Koksingh Vs. Smt. Deokabai, .
On considering the rival submissions of the parties and their respective pleadings as also the evidence oral as well as documentary, it is not in dispute that the suit land was originally recorded in the name of Nathan Gorhi @ Sah. The controversy between the plaintiffs and the defendants are that the plaintiffs claimed to be the son of Nathan Gorhi @ Sah and as such, he acquired the title and possession over the suit land on the death of his father. The defendants claimed title and possession on the basis of oral sale from Nathan Gorhi @ Sah and thereafter, purchased the land from his vendor in whose favour the oral sale was made. While considering the question of title, the trial court did not accept the story of oral sale in absence of any evidence to that effect. The Parcha (Exhibit - C ) on consideration, did not inspire any confidence as the name of Nathan Gorhi @ Sah mentioned as tenant in possession. The trial court discarded the aforesaid Parcha doubting its genuineness. The appellate court accepted the claim oral sale the sole ground of title of the defendants however, in absence of evidence on the record supporting the oral sale the finding in this regard is clearly suffers from manifest error of law which could not be sustained. The reasoning of the appellate court that during the material time, the oral sale was not unfamiliar, such finding could not be sustained in law, in absence of any evidence on the record vis-�-vis, the claim of title of the plaintiff being the son of the original owner had not in dispute. As regards the limitation, the contention of the Learned Counsel for the appellants that the suit filed based on his title as such, the suit could be filed within a period of 12 years from the date of his dispossession if any over the suit land as prescribed under article 65 of the limitation Act 1916. Admittedly, the sale deed was executed on 23.08.1973 (exhibit- E ) and the suit was filed within a period of 12 years and as such, the suit could not be validly held to be barred by limitation. The contention of the Learned Counsel for the appellants is well founded.
In the result, in view of the reasoning and discussions made above, the findings of the trial court with respect to the title over the suit land in favour of the plaintiffs (appellants) is affirmed. It is further held that the suit in question was not time barred considering the provisions of article 65 of the limitation Act which prescribed the period of 12 years for filing the suit based on title. As such, the findings of the trial court dismissing the suit on the ground of limitation as also contrary findings the appellate court with respect to the title and upholding the findings on the question of limitation is set aside. Accordingly, the appeal stands allowed as indicated above. No cost.