DEBI PRASAD Vs. MAIKA

JUDGEMENT

(1.) THE facts giving rise to this appeal are briefly as follows: Respondent No. 1 Smt. Maika and her two sons Dhika and Bhairon, respondents Nos. 2 and 3. filed a suit for cancellation of a certain sale deed in respect of the disput ed land which was executed by DcbJ Prasad, appellant-defendant No. 1, on 12-9- 1963 in favour of appellants Nos. 2 and 3 on the ground that the disputed land was purchased under a sale-deed by the husband of Smt. Maika and that ever since the purchase she along with her two sons Bhika and Bhairon had been in possession of the property and had plant ed trees over it. In this way the res pondents claimed title not only to the land but also to the trees standing there on and denied the title or possession of Debi Prasad to and over this property at any stage. Debi Prasad appellant had contested the suit along_ with his vendees. Debi Prasad claimed title, inter alia, on the ground of long adverse possession and one of the pleas raised by his ven dees appellants Nos. 2 and 3 was that they were vendees-purchasers of the pro perty from him for value. The trial Court held that the plaintiffs- respondents had failed to establish that the disputed land was purchased by Chhotey Lal, deceased husband of Smt. Maika. and came to the conclusion that the plaintiffs had failed to establish their title to the land. It was found at the same time that appellant Debi Prasad also had been un able to prove that he had been in ad verse uossession over the property. There was a further finding that respondents Nos. 2 and 3 were not vendees-purchasers, but still the trial Court awarded a decree for cancellation of the sale- deed in favour of the respondents on the sole basis that they were found to possess, what was described by the trial Court as. possessory title. The present appellants appealed and the first appellate Court also con curred in the finding of the trial court that neither the plaintiffs-respondents nor the appellant Debi Prasad had title to the property, the latter having failed to establish the plea of adverse possession, but relying on a decision of the Calcutta High Court in the case of Badri Narain Singh v. Kodo Sah, AIR 1915 Cal 423 held the plaintiffs-respondents entitled to a decree for cancellation of the sale- deed for having succeeded in showing them selves to be in possession of the pro-pe_rty. The appeal was in the result dis missed with costs and. therefore, Debi Prasad and his two vendees have come to this Court in Second Appeal.

(2.) THE learned counsel for the defendant-appellants made only one sub mission in the appeal. It was urged that the lower appellate Court misapplied the case of AIR 1915 Cal 423 and that under Section 31 of the Specific Relief Act, which was equivalent to Section 39 of the unamended Act. a decree for cancel lation of an instrument could not be pas sed in favour of the respondents on the basis of possession, their title not having been established.

(3.) SECTION 31 (1) of the Specific Belief Act is in these terms:-