BADRI PANDEY Vs. SM GULBI MODI

JUDGEMENT

(1.) The present appeal by defendant No. 1 arises out of a suit for declaration of title under Order 21, Rule 03, of the Code of Civil Procedure. The property in dispute is plot No. 742, holding No. 189, situate in village Kakrotia, within Sahibganj Khas Mahal. It is not disputed that originally this plot belonged to one Gendu Modi, who died leaving three daughters, Tulsi, Chaurasia and Patri, and that each of them inherited one-third of this plot, which has got an area of 2 kathas 14 dhurs. It appears that subsequently Chaurasia transferred her 18 dhurs to Patri, who was married to one Huro. Huro had one more wife, Sarbania. Against Sarbania, defendant No. 1 obtained a money decree, and, in execution of that decree, in Execution case No. 6 of 1950, originally 1 katha 16 dhurs of the plot in dispute were got attached. Agains; that order of attachment, there was an objection filed by the plaintiffs, whereupon the Court released 1 katha 4 dhurs of land and ordered that the attachment would operate only in regard to 12 dhurs. Subsequently, however, even as against that attachment of 12 dhurs, there was another objection filed by the plaintiffs. But that was summarily dismissed on the 2nd of March, 1953. It, however, so happened that in the writ of attachment, which was issued thereafter, the area of the land, that was included therein was stated to be 18 dhurs and not 12 dhurs. Accordingly, when this effect was detected, the executing Court, on the 26th of June 1953, passed an order for a fresh attachment. In the meantime the plaintiffs had instituted a suit under Order 21, Rule 63, of the Code of Civil Procedure against the order passed by the executing Court on the 2nd of March, 1953, but, as subsequently fresh attachment was directed to be made by the order dated the 26th of June, 1953 the plaintiff withdrew that suit on the 24th of March, 1954. Therein the prayer made by the plaintiff was, not only to withdraw the suit, but also for the permission to sue afresh. The Court, however, allowed only the first part of the prayer, but refused the prayer for leave to sue afresh. Thereafter, when a fresh attachment was got made with regard to 12 dhurs of land only, another objection was filed by the plaintiffs under Order 21, Rule 58, of the Code of Civil Procedure. That was dismissed on the 1st of March, 1954. Accordingly, thereafter, the suit giving rise to this second appeal was filed on the 2nd of April, 1954.

(2.) The defence pleaded on behalf of defendant No. 1 was that the sale made by Chaurasia was in favour of Huro, and not Patri, and that Sarbania had inherited the land in dispute from Huro.

(3.) Both the Courts below have concurrently found that the sale by Chaurasia was in favour of Patri, and not in favour of Huro. Therefore, the title as claimed by defendant No. 1 on the basis of inheritance in favour of Sarbania from Huro now stands finally negatived. But now for the first time it has been further submitted before one that even then the two Courts below should have taken into consideration the fact that the name of Sarbania was mutated in respect of one third of 1 katha 16 dhurs as far back as 1938, and thus the title of Sarbania in regard to 12 dhurs was mutated at least by adverse possession. Unfortunately, this aspect of the case was never raided in the two Courts below, and, therefore, now it is too late to be be agitated, here for the first time in second appeal. Lastly, it has also been brought to my notice that so far as the title with regard to 12 dhurs of land is concerned, that was clearly admitted by the plaintiffs in the previous objection filed by them under" Order 21, Rule 58, of the Code of Civil Procedure, and, therefore they are now estopped from challenging the title in respect of those 12 dhurs. This aspect of the matter has been taken into consideration by the lower appellate Court and the conclusion it has come to tliat the statements made in the previous objection petition at best amounts to an admission, and, as they have now been proved to be wrong, they cannot Operate any more as admission against the plaintiffs. Further, it also appears that an least in the trial Court much stress was not given to the issue of estoppel. For these reasons, I hold that this last contention also fails. Thus, the defendant No. 1 has failed to establish any title in regard to any part of the plot in dispute in Sarbania.