DWARKA PRASAD Vs. BALDEV KISHAN SHAHI

JUDGEMENT

(1.) THIS Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) impugns the judgment of the first appellate court dated 7.12.2011. The first appellate court by the impugned judgment allowed the appeal filed by the respondent/plaintiff and set aside the judgment of the trial court dated 24.2.2010 by which the suit filed by the respondent/plaintiff for possession of the suit property was dismissed. The suit property is plot No.36, Block No.3, Khasra No.3776/2635/783,

(2.) (i) The case of the respondent/plaintiff (now represented by his legal heirs) was that the suit property was originally owned by the Government. The Government acting under the appropriate authority of Disabled Persons (Compensation and Rehabilitation),1984 Act sold the suit property to one Sh. Amir Chand Shahi by means of the sale certificate dated 26.11.1960, Ex.PW2/1. The respondent/plaintiff is the legal heir of Sh. Amir Chand Shahi and the appellants/defendant nos.2 and 3 are said to have illegally trespassed into the suit property. The appellants/defendant nos.2 and 3 contested the suit and pleaded that they were the owners of the suit property because they had purchased the same from one Sh. Surjeet Singh. Originally in the suit there were three defendants and the present appellant no.1 was the defendant no.2 in the suit. The respondent/plaintiff compromised the suit with the original defendant no.1, namely Sh. Subhash Chand and whose name was thereafter deleted from the array of parties. This compromise pertained to 100 sq yds out of the total area of 200 sq yds. The present dispute therefore concerns 100 sq yds of the property sold by the sale certificate Ex.PW2/1 and of which the appellants/defendant nos.2 and 3 are in possession. (ii) The appellants/defendant nos.2 and 3 also took up the defence that the suit of the respondent/plaintiff is barred by limitation. (iii) The appellants/defendant nos.2 and 3 further pleaded before the courts below that the property which is being claimed by the respondent/plaintiff is not the same suit property which is in the possession of the appellants/defendant nos.2 and 3.

(3.) (i) So far as the conclusion that the suit is not barred by limitation, the first appellate court has given the following reasoning and which I accept: - "45. Now coming to the next aspect i.e. issue no.2 with respect to suit is barred by law of limitation. The Ld. Trial Court has not given its finding on this issue and has merely disposed off this issue on the basis of the finding of the Ld. Trial Court on the issues no.1 and 6 and the Ld. Trial Court while deciding this issue has held that no cause of action has arisen in favour of the plaintiff and against the defendants. This finding of the Ld. Trial Court again is not in accordance with. This court is of the opinion that once an issue has been framed by the Ld. Trial Court it was supposed to give its specific finding on the same and issue can not be permitted to be left open. 46. This court is competent under section 107 CPC either to remand back this case on the basis of such finding of the Ld. Trial Court as well as the court is also competent to dispose off this issue of its own and the court is disposing off this issue. 47. The present suit of the plaintiff has been filed on 11.04.1991. The defendants took this objection in their written statement that the suit is barred by the law of limitation. How the suit is barred by the law of limitation have not been explained. The defendant no.3 is claiming his possession in the suit property on the basis of registered sale deed in her favour as executed by the defendant no.2 being the attorney of Smt. Krishna Goel who has purchased the property from Sh. Surjeet Singh. The sale deed in favour of defendant no.3 is dated 20.03.1989 as executed by the defendant no.2 as attorney of Smt. Krishna Goel. The claim of the defendants in the written statement was that the persons from whom the defendants have purchased the property were in possession of this property since 1960 but there is no evidence on record to the effect that Sh. Surjeet Singh i.e. the person from whom Smt. Krishna Goel purchased the property was in possession of the suit property right from the year 1960. Defendants have not examined said Sh. Surjeet Singh or said Smt. Krishna Goel in their support. Therefore, they are not able to prove that the predecessor in interest were in possession of the suit property from the year 1960. As far as defendants themselves are concerned, they are in possession of the suit property only from 1989. The suit has been filed against these defendants in the year 1991. This is admittedly in a suit for possession and the onus was heavy upon the defendants to prove that they are in hostile possession of the suit property for a continuous period of 12 years and only if they would have been able to prove this fact, issue would have been decided in favour of the defendants. Here the admitted position of law is that these defendants have come in possession of the suit property only in the year 1989. The suit has been filed in the year 1991 and the same is not barred by law of limitation." (underlining added) (ii) Once the possession of Sh. Surjeet Singh and of Smt. Krishna Goel, the predecessors -in -interest of the appellant/defendant nos.2 and 3, was not proved by appellants/defendant nos.2 and 3, surely the first appellate court was fully justified in holding that the suit was not barred by limitation of 12 years.