RAM CHANDRA SAH Vs. AKHILESH PRASAD YADAV

JUDGEMENT

(1.) The present civil misc. petition has been filed under Article 227 of the Constitution of India, challenging the order dated 7th of July, 2017 passed by the learned Additional District Judge, Saran at Chapra in Title Appeal No. 55 of 2013/136 of 2014, by which the learned Additional District Judge, Saran at Chapra, rejected the petition dtd. 5/7/2017 filed on behalf of the plaintiffs/respondents/petitioners under Sec. 151, 152 and 153 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') wherein a prayer was made to pass a decree with respect to recovery of possession as well.

(2.) The conspectus of fact as it appears from the record is that the plaintiffs/petitioners filed Title Suit No. 395 of 2008 against the defendants/respondents seeking declaration that plaintiffs were having title over the suit land as mentioned in Schedule-Ka of the plaint and also for declaration that sale- deed dated 9th of June, 2008 executed by the defendant no. 5 in favour of the defendant nos. 1 to 4 in respect of Schedule-Kha land was illegal, without consideration, inoperative and was executed by a person having no title over the said land. It further appears that disputed land originally belonged to one Binda Rai, who had a daughter named Shakunti, who was invalid and died unmarried while staying with her father. After death of Binda Rai, his nephew Moharam Rai came in possession of the suit land. Moharam Rai had two sons, namely, Haneef Mian and Vakeel Mian, who came in possession over the land left by their father. In subsequent partition, the land mentioned in Schedule- Ka of the plaint has been allotted in the share of Haneef Mian, who died leaving behind his son, Md. Hasnain and widow Shahnaz Bibi, who came in possession over the Schedule-Ka land. The plaintiffs are purchasers from the heirs of Haneef Mian through different registered sale-deeds dtd. 3/5/2008 and 14/5/2008 and came into possession of the suit land.

(3.) Learned counsel appearing on behalf of the plaintiffs/petitioners submitted that the learned first appellate court rejected the petitioner mainly on the ground that no evidence has come on record regarding dispossession but it failed to appreciate that in course of trial witnesses have stated about the dispossession of the plaintiffs and the learned trial court gave a finding in favour of the plaintiffs, which has been affirmed by the learned first appellate court. Learned counsel further submits that learned first appellate court also overlooked the fact that amendment in plaint has been allowed regarding dispossession of the plaintiffs and said order has not been challenged by the defendants. Learned counsel further submitted that the learned first appellate court did not consider the admission made on behalf of the defendants/respondents in their additional written statement that the defendants were in possession of the disputed land. After admission in written statement, no further evidence was required for the petitioners to prove the said fact before the learned first appellate court. Learned counsel relied on a decision of learned Single Judge of this Court in the case of Gorakh Giri Vs. Surendra Giri, reported in (2004) 2 PLJR 254, wherein the learned Single Judge allowed the civil revision setting aside the order of the learned first appellate court in rejecting the application filed by the petitioner under Ss. 151, 152 and 153 of the Code for incorporating the reliefs, prayed for in the suit, in the judgment and decree, which have been omitted by the appellate court while allowing the appeal after setting aside the dismissal of the suit by the trial court. Thus, the learned counsel submitted that the order of the learned first appellate court is not sustainable and the same be set aside and the learned first appellate court be directed to modify the judgment incorporating the relief sought by the plaintiffs/petitioner vide amendment made in the plaint regarding recovery of possession.