Narayan vs Sitaram and Others

N.K. Mody, J.

Being aggrieved by the Judgment and Decree dated 23.8.88 passed by Additional District Judge, Kukshi in civil appeal No. 12-A/ 86 whereby the Judgment and decree dated 4.2.86 passed by Civil Judge Class-I, Kukshi in civil suit No. 219/84 has been set aside, the present appeal has been filed, which has been admitted for final hearing vide order dated 9.1.89 on the following substantial questions of law:

(1) Whether, in the facts and in the circumstances of the case, the defendant respondent acquired the title over the suit land by way of adverse possession?

(2) Whether the suit of the plaintiff was barred by time ?

Short facts of the case are that the appellant filed a suit for possession on 19.01.83 alleging that appellant is owner of the suit property bearing S. no. 141 situated at Alirajpur Road, Kukshi. It was alleged that a piece of land measuring 65 x70 ft. is in occupation of respondents where the respondents constructed temporary shelter. Further case of the appellant was that before 25 years of filing of the suit approximately, the father of the appellant kept the respondent No. 1 as his employee for agricultural purpose. Since respondent No. 1 was not having any shelter to live, therefore, the suit property was given to respondent No. 1 where a temporary shelter was constructed by respondent No. 1.

Further case of the appellant was that on 18.8.83, a notice was issued to the respondents to vacate the accommodation in which the respondents were permitted to live. Vide reply dated 6.9.83, respondents refused to give the possession, hence the suit was filed.

In the written statement, plaint allegations were denied. It was alleged that respondent No. 2 is in occupation of the suit property for lase

more than 60-65 years. It was also alleged that father of the appellant filed a case in the year 1968-69 before the court of Naib Tahsildar which was dismissed on 26.5.69. It was also prayed that suit be dismissed.

On the basis of pleadings of parties, learned trial court framed issues, recorded the evidence and decreed the suit, against which appeal was filed which was allowed. Being aggrieved by the Judgment and Decree passed by the appellate court, the present appeal has been filed.

It is submitted that learned court below committed error in stating that suit was barred by time. The suit was filed by the appellant on 19.10.83. Prior to filing of the suit, notice was issued by the appellant which is dated 18.8.83. and is available on record as Ex. P/3. It is submitted that reply was given on 6.9.1983 by respondents through Advocate which is Ex. P/5. In this reply it was also not disputed that suit property was given by the father of the appellant. It is submitted that thus the possession of the respondent was permissible and not hossile.

Apart from this, learned counsel submits that learned appellate court has held that suit is barred by law of limitation only because in the document Ex. D/2 which is the judgment dated 1.8.69 of criminal court in case No. 29/ 69 it is mentioned that a dispute took place over the suit property on 19.12.68 wherein it is mentioned that deceased respondent No. 1, Gunga has denied the title to the appellant.

Learned counsel for the appellant submits that for holding that suit is barred by law of limitation, this is not enough. Learned counsel further submits that learned court below committed error in placing reliance on the judgment of a criminal case which is illegal because it was not pleaded by the respondent in the written statement and also it was not relevant. In this regard, learned counsel for appellant place reliance of Section 43 of the Indian Evidence Act which reads as under:

Sec.43. Judgments, orders or decrees, other than those mentioned in section 40, 41 and 42 are irrelevant, unless the existence of such judgment, order of decree, is a fact in issue, or is relevant under some other provision of this Act.

Learned counsel submits that since the Judgment of the criminal case is not a judgment u/s 40 to 42 of the Indian Evidence Act, therefore, it has not relevance in the present case. It is submitted that a judgment in the criminal case is not a matter of public nature and is not admissible in evidence in civil proceedings under this section.

From perusal of record, it is evident that suit has been held by bar of law of limitation only on the basis of Judgment Ex. D/2 which is a judgment of the criminal case. Nothing has been pleaded in this regard in the written statement. In view of the provisions of Evidence Act, the Judgment of criminal case is irrelevant for deciding the civil case.

Since, it is not disputed that deceased Gunga, predecessor- in- title of respondent No. 2 was induced by predecessor in-title of the appellant, therefore, the burden to prove that the respondents were in hostile title, was on the respondents. Since the respondents have failed to prove that they were having hostile title within the knowledge of the appellant since last more than 12 years, therefore, learned court below committed error in allowing the appeal.

In view of this, the appeal is allowed and the Judgment and decree dated 23.8.88 passed by Additional District Judge, Kukshi in civil appeal No. 12-A/86 is set aside and the Judgment and decree dated 4.2.86 passed by the trial court in civil suit no. 219/84 is restored.