Second Appeal No. 622 / 2002.
8/7/2014.
Shri Sanjeev Saxena and Shri O.P. Mishra, Advocates for the appellants.
Shri Sumesh Tripathi, Advocate for the respondents no. 1 and 2.
Heard on admission.
This second appeal under Section 100 of CPC has been filed against the
judgment and decree dated 21.8.2002 passed in civil appeal no. 25-A/01 by
learned Additional District Judge, (Fast Track Court) Shahdol (MP) reversing the
judgment and decree dated 13.7.1998 passed in Civil Suit No.9-A/81 by learned
Civil Judge Class-II, Burhar, District Shahdol (MP).
Learned counsel for the appellants has drawn attention towards the
judgment passed by learned trial court and submitted that learned lower
appellate court is not justified in reversing the judgment of dismissal of the suit
passed by learned trial court. It is further submitted that Siddhanath was not
mentally retarded as pleaded by the plaintiffs and no inquiry has been
conducted under Order 22 Rule 5 CPC regarding mental condition of
Siddhanath.
Learned lower appellate court has considered the fact that Siddhanath
died on 17.8.1982 and thereafter, his legal representatives have been
impleaded as plaintiffs and thereafter, evidence was recorded in the case in the
year 1996 onwards and the legal representatives of Siddhanath were having
right to file suit independently, therefore, suit can be treated as filed by the
legal representatives of Siddhanath.
Learned lower appellate court has held that defendant Ramagovind has
not acquired any right over the suit property by way of adverse possession by
setting aside the finding of trial court considering the fact that name of Diwakar
was mutated in the Revenue Court in place of Siddhanath during lift time of
Siddhanath and defendant Ramagovind has not been allowed to take
possession of the suit land and the plaintiff Jugalkishore was not allowed to
take possession of the suit land by Ramagovind.
Learned lower appellate court has held that the possession of defendant
Ramagovind was not adverse as it was not within the knowledge of actual
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owner.
Learned lower appellate court has considered the fact that the suit land
is in possession of Ramagovind even before July, 1968 and plaintiffs were
having knowledge about possession of Ramagovind and the defendants have
acquired title over the suit land by adverse possession. Since the plaintiffs have
instituted the suit, therefore, they have been stopped from challenging the
maintainability of the suit on the ground that no inquiry has been made
regarding mental condition of Siddhanath. Finding of learned trial court was
perverse and learned lower appellate court is justified in reversing the finding
of learned trial court and finding of both the courts below are based on facts
regarding possession of defendant Ramagovind. Therefore, the learned lower
appellate court is fully justified in reversing the judgment and decree passed by
learned trial court and learned lower appellate court has properly appreciated
the facts and there is no substantial question of law involved in this appeal as
finding of learned trial court was perverse and has been rightly set-aside by
learned lower appellate court. Therefore, the appeal is dismissed.
(Anil Sharma)
Judge
Parouha/-
