Sudama Ojha vs Brij Kumar Mishra and Others

P.K. Deb, J.—This appeal has been preferred by the above named Defendant-Appellant against the judgment and decree passed by the appellate court in Title Appeal No. 1 of 1995 (confirmed the judgment passed by the trial court in Title Suit No. 43 of 1987 in respect of partition but some modification has been made in that judgment regarding the title and possession of Defendant No. 6) and, as such, the present appeal has been preferred.

The suit was for partition for half and half share between Plaintiff and Defendant 1st party. There was challenge etc. but then partition was granted. Defendant No. 6''s case is that he had purchased 22 decimals of land in the year 1956 from the father of Defendant No. 1 and out of that sale 8 decimals were purchased by registered document while 14 decimals worth Rs. 1,000/- by oral. The appellate court held that Defendant No. 6 shall be entitled to 8 decimals of land only as the father of Defendant No. 1 had no authority to sell 22 decimals of land as his share did not allow and the oral sale, as claimed, has also been annulled as the same is worth Rs. 1,000/-. This part of the judgment of the appellate court has been challenged with the plea that although there were pleas of Adverse possession of Defendant No. 6 in respect of 14 decimals of land, the same has not been considered in its proper perspective by the appellate court and wrongly decided that Defendant No. 6 has no title over the 14 decimals of land which, according to Defendant No. 6, has been perfected by adverse possession. It appears that such claim has been made only on the basis that Defendant No. 6 claimed to be in possession of the whole of 22 decimals of (sic) in the year 1956 itself and in that way, (sic) long possession he has perfected his (sic) by adverse possession. The question possession cannot be the sole criteria the purpose of perfecting title by (sic) possession. That needs two other (sic) besides uninterrupted possession a long period of 12 years. There could be ascertaining of own title by (sic) concerned and also with the knowledge and adverse to the title of the real owner. Here the purchaser became the co-sharer by purchase as there was no partitition and against the co-sharers there can be adverse possession only when there is a proof of ouster. The question of proof of ouster does not arise at all when there is no such plea and the parties are in possession as is found from the fact that partition decree has been granted.

In that way, I do not find that the appellate court has committed any error which can be interfered into by this Court in Second Appeal. Hence, there is no force under Order 41 Rule 11 of the Code of Civil Procedure. The appeal is dismissed.

In respect of stay it has been stated at the Bar that already delivery of possession is there. Even if delivery of possession is there, no question of stay is required to be considered when the appeal itself has been dismissed.