SUMITRA DEVI Vs. MAHADEO TIRKEY

JUDGEMENT

(1.) This second appeal has been filed against the judgment dtd. 13/3/2019 and decree signed on 25/3/2019 passed by learned Additional Judicial Commissioner-X, Ranchi in Civil Appeal No.28 of 2015, whereby the said appeal has been dismissed. The judgment and decree dtd. 29/5/2015 was passed by learned Civil Judge (Sr. Div.)-VIII, Ranchi in Misc. Case No.04 of 2006, whereby the objection filed by the present appellant under Order-XXI, Rule-99 and 101 read with Sec. 151 of Code of Civil Procedure was dismissed. The aforesaid petition was filed before the executing court dealing with execution of judgment and decree passed in Partition Suit No.99 of 1995 and admittedly, the appellant was not a party in the partition suit. Arguments of the appellant on the point of formulating substantial question of law in this appeal.

(2.) The learned counsel for the appellant has submitted that the appellant was not a party in the partition suit and at the stage of execution the appellant filed a petition under Order XXI Rule 99 and 101 read with Sec. 151 of CPC by stating that the appellant is in possession of the property. The learned counsel submits that the appellant is in possession of the property and she has already perfected her title by adverse possession irrespective of the order of eviction passed under Sec. 71-A of the Chota Nagpur Tenancy Act, 1908 to evict the appellant from the property. The learned court ought to have decided the objection particularly with regard to adverse possession and Sec. 48(4) of the Chota Nagpur Tenancy Act, 1908 which prescribes a period of limitation of 12 years to file a petition seeking eviction of a person in possession. The learned counsel has submitted that the executing Court has refused to decide the issue on the ground that there is already an order of eviction passed in SAR Case No. 389 of 2004-05 and that the revision is pending before the Commissioner arising out of the order of eviction passed in SAR Case No. 389 of 2004-05 and the said authority would have the jurisdiction to decide as to whether the order of eviction passed under Sec. 71-A was barred by limitation. The learned counsel has submitted that the Civil Court had the necessary jurisdiction to decide all the points of objection. The learned counsel has submitted that the Appellate Court has not considered the issue regarding Sec. 48(4) of the Chota Nagpur Tenancy Act, 1908.

(3.) However, during the course of hearing, it is not in dispute that an authority passing an order under Sec. 71-A of Chota Nagpur Tenancy Act, 1908 also has the jurisdiction to consider the point of limitation in connection with prayer for eviction made through an application under Sec. 71-A of the Chota Nagpur Tenancy Act, 1908 and the revision arising out of the orders passed under Chota Nagpur Tenancy Act, 1908 was pending before the competent authority .