IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.268 of 2007 Fulo Sharma s/o Late Natho Sharma resident of Baijnathpatti Tola Baluwaha P.S. and Dist. Saharsa Defendant-Respondent-Appellant Versus 1. Bindo Sharma 2. Raj Kamal Sharma both sons of Saryug Sharma 3. Subudhi Devi 4. Mankiya Devi both daughters of Saryug Sharma All resident of Baijnathpatti Tola Baluwaha P.S. and Dist. Saharsa Plaintiffs-Appellants- Respondents 5. The State of Bihar through the Collector, Saharsa 6. Circle Officer, Sattarkattaiya Anchal Dist. Saharsa 7. Jagdeo Sharma 8. Natheshwar Sharma @ Natho Sharma both sons of Mouzi Sharma Both resident of Baijnathpatti Tola Baluwaha P.S. and Dist. Saharsa Defendants-Respondents- Respondents ------------- For the Appellant: Mr Diwakar Prasad Singh, Advocate ------------- 10/ 06.05.2010 I.A. No. 7348 of 2008 has been filed on 10.12.2008 on behalf of the appellant for substituting the heirs of respondents no.3 and 8. According to the appellants, respondent no.3 died on 04.06.2005 and respondent no.8 died on 27.11.2007, leaving behind their respective heirs, fully detailed in paragraphs no.2 and 3 of the interlocutory application. A prayer has also been made for setting aside abatement. I.A. No. 7349 of 2008 has been filed for condoning the delay in filing of the application for substitution. Considering the averments made by learned counsel for the appellant and the statements made in the interlocutory application, it appears that genuine reasons have been shown, which prevented the appellant from filing the said applications earlier. Accordingly, both the aforesaid interlocutory applications are allowed, delay in filing of the application for substitution is condoned and abatement is set aside. Let the - 2 - aforesaid heirs of respondents no.3 and 8 be substituted in their respective places. 2. I.A. No. 6754 of 2007 has been filed on behalf of the appellant for condoning the delay in filing of the second appeal. Although it is quite apparent that there is delay of more than six years in the filing of the instant second appeal but in view of the statements made by learned counsel for the appellant and the statement made in the interlocutory application, delay is condoned and the aforesaid interlocutory application is allowed so that this second appeal may be considered and decided on merit. 3. Heard learned counsel for the appellant. 4. This second appeal has been filed by the defendant- respondent- appellant challenging the judgment and decree of court of appeal below. 5. The matter arises out of Title Suit no.3 of 1988 which was filed by respondents 1st set for declaration of their title and confirmation of possession with respect to the suit land and also for declaration that revisional survey khatiyan in the name of the defendant is wrong . The aforesaid suit was decreed in part holding that the suit land belonged to the State of Bihar who was a party to the suit and had contested the same vide his judgment and decree dated 12.02.1993 passed by Additional Munsif, Saharsa. 6. Against the aforesaid judgment and decree of the trial court, two title appeals were filed by two sets of defendants, out of which Title Appeal no.10 of 1993 was filed by Subdhi Devi and others whereas Title Appeal No. 8 of 1993 was filed by Jagdeo Sharma and others. Title Appeal no.10 of 1993 was allowed whereas Title Appeal no.8 of 1993 was - 3 - dismissed by Additional District Judge I, Saharsa, vide his judgment and decree dated 15.02.2001.Against the judgment and decree passed in Title Appeal no.10 of 1993 the instant second appeal has been filed. 7. Although learned counsel for the appellant vehemently challenges the aforesaid judgment and decree of court of appeal below on various grounds, namely, that no notice under section 80 of the Code of Civil Procedure (hereinafter referred to as “ the Code” for the sake of brevity) was given to the State of Bihar and that plea of adverse possession of the respondent was wrongly allowed by the court of appeal below and also that much subsequently State of Bihar had settled the suit land with the appellant. However, it is quite apparent that the State of Bihar was added as a party in the suit subsequently and they at no stage raised any objection for absence of notice under section 80 of the Code and hence the appellant has no locus to raise such issue nor at this stage the appellant can be legally allowed to raise such plea in the instant second appeal. 8. So far the question of adverse possession is concerned, the court of appeal below has very carefully considered that aspect of the matter and has found that the acquisition of title by adverse possession can be established only when the party claims definite date from which the possession starts. The vague claim of adverse possession without impleading definite date has to be rejected in toto. In the said circumstances, it is quite apparent that the plea of adverse possession raised by the private respondents did not find favour with that court which decided the said issue according to the settled principle of law. 9. Furthermore, the appellate court has also very carefully considered the question of title and has arrived at the specific finding on the - 4 - basis of the evidence and pleadings of the parties that Anant Lal Yadav was not legally entitled to transfer any property and to confer any title upon the alleged vendor of appellants. It was also found that alleged deed of correction can not legally create title in favour of the appellant or his vendor with respect to plot no.915. It was also found that the plaintiff had derived title over plot no.915 on the basis of his purchase from Anar Devi and Dahor Devi as well as from Srichand Sharma who were the real owners of the said land. Hence the question of title has also been rightly decided by the courts below on the basis of the pleadings and evidence of the parties. 10. So far the question of settlement by the State of Bihar in favour of the appellant is concerned, such point was neither raised in the suit nor was raised even in the title appeal which was decided on 15.02.2001 as the appellant had claimed that the suit land was settled to the appellant by the State of Bihar on 25.09.2001. It is quite apparent that after the aforesaid judgment and decree of the court of appeal below, State of Bihar had no right at all to make such settlement and if any such settlement is made in favour of the appellant it would be completely illegal and without jurisdiction. 11. Since no illegality is found in the judgment and decree of the court of appeal below and no substantial question of law being available to the appellant, this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid