APPEAL FROM APPELLATE DECREE No.422 OF 1999 **** (Against the judgment and decree passed by Sri Om Prakash Pandey, 3rd Additional District Judge, Nawada in Title Appeal No.43 of 1998 setting aside the judgment and decree passed by Sri Raj Kumar Singh, Additional Munsif-II, Nawada in Title Suit No.71 of 1992) 1. Arjun Prasad Gupta son of Late Bhagwan Das Gupta 2. Smt. Jai Rani Gupta @ Jai Rani Devi wife of Arjun Prasad Gupta, both are residents of Mohalla-Station Road in Nawadah, P.S. and District Nawadah. ……………Defendants-Respondents-Appellants. Versus Smt. Rita Rani Gupta wife of Bhimsen Gupta, resident of Mohalla-Station Road, Nawadah, P.S. and District Nawadah. …..……….Plaintiff-Appellant-Respondent. For the appellants : Mr. S.S.Dwivedi, Sr. Advocate with M/s L.L. Pandey and R.K. Dubey, Advocates. For the respondent : Mr. Shivajee Pandey, Sr. Advocate with M/s Syed M.M. Ahsan and Awdhesh Kr. Singh, Advocates. P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN **** S.N. Hussain, J. This second appeal has been filed by the defendants-respondents-appellants challenging the judgment and decree of the learned court of appeal below by which the judgment and decree of the trial court was reversed and the claim of the sole plaintiff- appellant-respondent was decreed. 2. The matter arises out of Title Suit No.71 of 1992 (74 of 1997) which was filed by the sole respondent claiming that the entire suit land was purchased by Jhaliya Devi vide registered sale deed dated 12.08.1947, who constructed the house and subsequently gifted the entire suit house with land in favour of her daughter-in-law, namely the plaintiff vide registered deed dated 23.09.1979. On the said ground the following reliefs were sought:- (a) A decree for eviction of the defendants from the suit premises in favour of the plaintiff by delivery of vacant possession of the suit premises. 2 (b) Cost of the suit in favour of the plaintiff. (c) A decree for realisation of mesne profit in favour of the plaintiff. (d) Any other relief or reliefs to which the plaintiff is entitled. 3. The defendants contested the claim of the plaintiff stating that the suit property was purchased by Bhagwan Das in the name of his wife Jhaliya Devi on 12.08.1947 and the house was constructed by joint family out of joint family fund and hence the plaintiff had no right to claim ejectment of the defendants as defendant no.1 was the son of Bhagwan Das and Jhaliya Devi, whereas defendant no.2 was the wife of defendant no.1. 4. Considering the respective claims of the parties the learned trial court framed the following issues for deciding the suit:- (i) Is the suit as framed maintainable? (ii) Whether the plaintiff has got any cause of action for the suit? (iii) Whether the defendants are liable to be ejected from the suit premises? (iv) Whether the plaintiff is entitled to mesne profit? (v) To what relief or reliefs the plaintiff is entitled ? 5. On the said issues evidence were led and parties were heard whereafter learned Additional Munsif-II, Nawada dismissed the suit on contest vide his judgment and decree dated 27.06.1998 after arriving at the following findings:- (a) Suit premises was acquired by Jhaliya Devi who was absolute owner thereof and was not a Benamidar/name lender of her husband Bhagwan Das. (b) Defendants are neither trespassers nor licensees nor even tenants with respect to the suit property. (c) Defendant no.1 has been residing in the suit premises since his birth and hence his possession is not illegal. (d) Defendant no.1 has been coming in peaceful and continuous possession of the suit premises to the knowledge of all since his birth i.e. 50 years and hence he has acquired ownership over the suit premises by prescription. (e) Defendant no.1 has acquired perfect right and title over the suit premises by virtue of adverse possession and hence he cannot be ejected from the suit premises. (f) The plaintiff has got no cause of action for the suit and the suit as framed is not maintainable. 3 (g) The plaintiff is not entitled to any mesne profit. (h) The plaintiff is not entitled to any decree. 6. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No.43 of 1998 (02/1999) in which the defendants also appeared and contested. The learned lower appellate court framed the following points for deciding the title appeal:- (i) Whether in view of previous judgments passed in Title Suit (Partition) No.39 of 1980, confirmed in Title Appeal No.19 of 1989 as well as in Second Appeal No.201 of 1997 by the Hon’ble High Court, there can be any contrary finding that Rita Rani Gupta the present plaintiff had no title over the suit house? (ii) Whether the suit is governed by Article 65 of the Limitation Act 1963 or any other provision of the same? (iii) Whether the defendants have acquired title by prescription and adverse possession so as to non-suit the plaintiff? (iv) Whether the plaintiff is entitled to the decree for ejectment and to get vacant possession of the suit premises as prayed for and other relief or reliefs? 7. After considering the pleadings and evidence of the parties learned 3rd Additional District Judge, Nawada allowed the title appeal and set aside the judgment and decree of the trial court and decreed the suit and claim of the plaintiff directing the defendants to vacate the suit premises by giving vacant possession of the same to the plaintiff vide judgment and decree dated 10.09.1999 after arriving at the following findings:- (a) The suit premises was acquired by Jhaliya Devi who was absolute owner thereof and she was not a Benamidar/name lender of Bhagwan Das. (b) Partition Suit No.39 of 1980 filed by defendant no.1 impleading his mother Jhaliya Devi, his brother Bhimsen Gupta, his sister-in-law Rita Rani (defendants) claimed 37 paise share in the suit property having been dismissed by the trial court vide judgment and decree dated 12.04.1989 which was affirmed in Title Appeal No.19 of 1989 and S.A. No.201 of 1997 vide judgments and decree dated 17.07.1997 and 29.04.1998 respectively, the defendants cannot raise any question of title over the suit premises. 4 (c) In view of deed of gift executed by the original owner in favour of the plaintiff on 23.09.1979 and also in view of the judgment and decree in the earlier partition suit, it is quite apparent that defendants had no right and title over the suit premises and their possession was simply permissive in nature. (d) Possession of the defendants was never hostile or adverse towards Jhaliya Devi, the original owner and residence of defendant no.1 in the suit premises since his birth cannot legally start the limitation with respect to the claim of adverse possession. (e) Possession of defendants was definitely permissive possession and even thereafter the defendants have failed to establish that they along with their family members remained in hostile continuous and uninterrupted possession of the suit premises for more than 12 years. (f) Possession of defendant no.1 can be said to be adverse only after the rejection of his claim in Partition Suit No.39 of 1980 vide judgment and decree of the trial court dated 12.04.1989, when his claim of title in the suit premises was negatived by the learned Munsif, Nawada and limitation against the plaintiff will start running from that very date only and not earlier thereto. (g) The instant suit was filed in the year 1992 i.e. within four years of the judgment and decree passed in the partition suit by a competent Civil Court and hence the defendants were never in possession adverse to the real owner for the statutory period so as to ripen that possession in a valid and perfect title. (h) The defendants have not acquired title by adverse possession against the plaintiff to non-suit her and to extinguish her substantive right in the suit property. (i) Plaintiff is entitled to a decree for possession and to get vacant possession of the suit premises from the defendants. (j) If the defendants do not hand over vacant possession during the period allowed by this court, the plaintiff would also be entitled to mesne profit at the rate of Rs.1,000.00 per month as damages for illegal and unauthorised occupation of the suit premises from the date of institution of the suit till the date of recovery of possession. 8. Against the aforesaid judgment and decree of the learned court of appeal below the defendants filed the instant second appeal which was admitted on 17.09.2002 by a Bench of this court on the basis of following substantial questions of law:- (i) Whether lower appellate court was legally justified in holding that the defendants-appellants have failed to establish that they along with their family members remained in continuous 5 uninterrupted possession for 12 years so as to acquire title by adverse possession on the face of there being no dispute about continuous uninterrupted possession of the defendant- appellants even after the execution of the deed of gift on 23.09.1979 in favour of the plaintiff-respondent? (ii) Whether the lower appellate court, on the face of the execution of deed of gift in favour of the plaintiff on 23.09.1979 and in absence of denial that the defendant-appellants remained in continuous uninterrupted possession since before the execution of the deed of gift till even now, is legally justified in holding that the possession of defendant no.1 can be said to be adverse after the judgment of the partition suit on 12.04.1989 when his independent title in the suit premises was negatived? 9. The final hearing of the instant second appeal started on 28.01.2010 and on that date learned counsel for the appellants raised two more substantial questions of law to be considered in the instant second appeal. They are as follows:- (iii) Whether the judgment of the lower appellate court is vitiated on account of absolute non-consideration of defendants’ evidence, oral and documentary? (iv) Whether lower appellate court is legally justified in assuming the defendants to be trespassers and living with permissive possession, which are mutually exclusive, without considering any evidence of the parties on the points? 10. After the arguments of the appellants as well as the arguments of the respondent were heard, learned counsel for the appellants at the time of his argument in reply on 19.02.2010 also raised another question claiming to be a substantial question of law in the instant second appeal which is as follows:- (v) Whether the question of mesne profit or damages not being an issue in the suit, the appellant is entitled to refund of his entire money deposited by him in this appeal by way of security under Order XLI Rule 5 of the Code of Civil Procedure as directed vide order dated 26.06.2000 and modification order dated 10.03.2001 passed by this Hon’ble Court? 11. Learned counsel for the appellants, who were defendants in the trial court, claimed that the parties had a common ancestor, namely Bhagwan Das who died on 26.01.1969 leaving behind a widow Jhaliya Devi and two sons Bhimsen Gupta (not party to the instant suit) and Arjun Prasad Gupta (defendant no.1). It was also stated that the plaintiff Rita Rani Gupta was the wife of the aforesaid Bhimsen Gupta, whereas 6 defendant no.2 Jai Rani Devi was the wife of Arjun Prasad Gupta (defendant no.1). It was also stated that the entire 02 decimals of land Holding No.176 was purchased by Bhagwan Das from the original owner vide registered deed dated 12.08.1947 in the name of his wife Jhaliya Devi, whereafter Bhagwan Das constructed the suit house from the joint family fund and hence after the death of Bhagwan Das on 26.01.1969 the said property devolved upon his widow Jhaliya Devi and his two sons Bhimsen Gupta and Arjun Prasad Gupta having equal shares and accordingly the ground floor was occupied by Bhimsen Gupta and his wife Rita Rani Gupta (plaintiff), whereas the first floor of the suit house was occupied by Arjun Prasad Gupta (defendant no.1) and his wife Jai Rani Devi (defendant no.2). Hence he claimed that Jhaliya Devi not being the exclusive owner of the entire suit property had no right to transfer it to the plaintiff Rita Rani Gupta by registered deed of gift dated 23.09.1979. It was also averred that even after 23.09.1979 the defendants remained in exclusive possession of the first floor of the suit house in their own right and thus they acquired title also by adverse possession as Title Suit No.71 of 1992 was filed by the plaintiff on 20.05.1992 i.e. after the expiry of 12 years. It was also claimed by learned counsel for the appellants that the plaintiff’s pleading of permissive possession was not proved and neither any issue regarding permissive possession or adverse possession or encroachment was framed by the learned courts below nor it was considered and decided. It was further averred that the claim of permissive occupant and encroacher being mutually contradictory in nature both of them cannot legally go together. It was also argued that although mesne profit was relief no.‘C’, but it was neither pressed before the trial court nor it was decided by the trial court but the learned court of appeal below all of a sudden in the last portion of its judgment considered and allowed the claim of mesne profit without calculation and measurement made with respect thereto nor the rate fixed by the lower appellate court was legally justified. 12. On the other hand, learned counsel for the respondent, who was plaintiff in the trial court, claimed that the suit property was purchased by Jhaliya Devi by registered sale deed dated 12.08.1947 from her own fund and she was not merely a 7 name lender of her husband Bhagwan Das, hence she had full right over the suit property to transfer the same to the plaintiff by registered deed of gift dated 23.09.1979 on the basis of which the plaintiff acquired full right, title and possession over the suit property. It was also claimed that Partition Suit No.39 of 1980 was filed by Arjun Prasad Gupta (defendant no.1 of the instant suit) for partition of the suit property claiming it to have been purchased by Bhagwan Das after whose death it devolved upon his widow and two sons including Arjun Prasad Gupta and hence partition was required. It was also claimed that the said Partition Suit No.39 of 1980 was dismissed by the trial court on 12.04.1989 holding that the said property was not joint family property, rather it was exclusive property of Jhaliya Devi who had transferred it to Rita Rani Gupta (plaintiff of the instant suit) by registered deed of gift dated 23.09.1979. It was also averred that the said judgment and decree of the partition suit was affirmed by the lower appellate court as well as by this court in Title Appeal No.19 of 1989 and S.A. No.201 of 1997 by their respective judgments and decree dated 17.07.1997 and 29.04.1998. Hence he claimed that Title Suit No.71 of 1992 filed by Rita Rani Gupta for ejectment of the appellants was quite legal and proper and there was no question of any adverse possession. It was also claimed that mesne profit awarded by the learned court of appeal below was for damages and loss to the plaintiff due to illegal possession of defendants- appellants of the instant second appeal who were not even found to be co-sharers in the earlier partition suit which was decided against them up to the High Court. He further claimed that the mesne profit allowed by the learned court of appeal below was only for Rs.1,000.00 per month for the illegal and unauthorized use and occupation of the suit premises from the date of institution of the suit till the date of recovery of possession which is quite a meagre amount and cannot be said to be excessive. 13. Substantial questions of law no.(i) and (ii): These two substantial questions of law are inter-related and hence they are taken up together. The genealogy of the family is not in dispute as it is an admitted fact that Bhagwan Das died on 26.01.1969 leaving behind a widow Jhaliya Devi and two sons Bhimsen Gupta (not party to the instant suit) and Arjun Prasad Gupta (defendant no.1) and that plaintiff Rita 8 Rani Gupta is the wife of Bhimsen Gupta, whereas defendant no.2 Jai Rani Devi is the wife of Arjun Prasad Gupta (defendant no.1). It is also not in dispute that a registered deed of sale dated 12.08.1947 was executed by the original owner with respect to the entire suit land in favour of Jhaliya Devi for valuable consideration. 14. The dispute between the parties to the instant case with respect to the aforesaid deed is that the plaintiff claimed that the said property was purchased by Jhaliya Devi from her own fund and the construction thereon was also made by her, whereas the claim of the defendants is that the said suit land was purchased by Bhagwan Das by registered sale deed dated 12.08.1947 in the name of his wife Jhaliya Devi who was a mere name lender and thereafter the said Bhagwan Das constructed a house thereupon from the joint family fund. This question was under consideration in the earlier Partition Suit No.39 of 1980 (154/1988) which was filed by defendant no.1 Arjun Prasad Gupta against Bhimsen Gupta and Jhaliya Devi for partition of the suit land, claiming that the suit property was the exclusive property of Bhagwan Das who was the actual purchaser and hence after his death on 26.01.1969 it devolved upon his heirs, namely the widow Jhaliya Devi and two sons Bhimsen Gupta and Arjun Prasad Gupta and hence the suit property was liable to be partitioned. The plaint of the said suit is Ext.6 whereas the written statement filed by Bhimsen Gupta and his wife is Ext.7. The said partition suit was dismissed on contest with cost by the learned Munsif, Nawada vide his judgment and decree dated 12.04.1989 (Ext.9) holding that the said suit premises was not acquired or purchased by Bhagwan Das, rather it was acquired by Jhaliya Devi from her personal fund and it was her exclusive and separate property and she was fully entitled to transfer it by registered deed of gift dated 23.09.1979 (Ext.5) in favour of her daughter-in-law Smt. Rita Rani Gupta who acquired full right and title over the suit property on its basis. The said judgment and decree of the trial court was affirmed by learned 2nd Additional District Judge, Nawada who dismissed Title Appeal No.19 of 1989 (02/1993) filed by Arjun Prasad Gupta on contest with cost vide his judgment and decree dated 17.07.1997 (Ext.9/A). The said judgments and decree of the 9 learned courts below were also affirmed by this court vide its order dated 29.04.1998 by which S.A.No.201 of 1997 filed by Arjun Prasad Gupta was dismissed. 15. On the other hand, Ext.A and Ext.A/1 produced by the defendants are lawyer’s certificates dated 03.09.1997 and 24.09.1997 about the pendency of S.A. No.201 of 1997 in this High Court, whereas Ext.B and Ext B/1 are the orders of Executive Officer, Nawada Municipality dated 29.06.1981 and 27.01.1987 staying the proceeding of mutation during the pendency of the aforesaid partition suit. Ext.B/2 is order of the D.C.L.R., Nawada dated 04.09.1989 by which Mutation Appeal No.68 of 1987-88 filed by Arjun Prasad Gupta against the order of mutation dated 23.03.1986 passed by the Circle Officer in Case No.625 of 1986-87 was allowed. Ext.B/3 is order dated 18.03.1993 by which the learned Collector, Nawada rejected Appeal Case No.24/R/1989 filed by the plaintiff and affirmed order of D.C.L.R. dated 04.09.1989 (Ext.B/2). Ext.B/4 is order dated 21.03.1991 passed by Survey Superintendent in Appeal No.41 of 1987 under the Survey Act setting aside the orders passed by the authorities concerned recording the names of both the parties with respect to half share each. On the other hand, the plaintiff had filed lawyer notice to the defendants dated 02.07.1989 as Ext.1 and the signature of the lawyer thereon is Ext.2, whereas Exts.3 and 4 are its acknowledgement and receipt of registration. Ext.1/A is the reply of Arjun Prasad Gupta to the said notice. Ext.8 is order dated 27.01.1987 by which the Executive Officer, Nagarpalika had stayed Mutation Case No.24 of 1987-88 till the disposal of the partition suit. 16. From a careful perusal of the aforesaid documents it is quite apparent that they do not support the defendants’ claim of title over the suit premises nor could they legally disprove the effect of the sale deed dated 12.08.1947 in favour of Jhaliya Devi or the deed of gift dated 23.09.1979 in favour of the plaintiff specially when the claim of Arjun Prasad Gupta and his wife had already been rejected and the right and title of Smt. Rita Rani Gupta had been declared by an appropriate Civil Court of proper pecuniary and territorial jurisdiction which had been affirmed up till this court. Furthermore, although the learned trial court dismissed Title Suit No.71 of 1992 on the 10 basis of adverse possession, but it clearly held that the suit property was acquired by Jhaliya Devi by registered sale deed dated 12.08.1947 who was absolute owner thereof and was not a Benamidar/name lender of her husband Bhagwan Das and that she had transferred her right, title and interest in the suit property in favour of Smt. Rita Rani Gupta by registered deed of gift dated 23.09.1979 (Ext.5). This finding of the trial court has not been challenged by the defendants. In view of the aforesaid discussions as well as the registered deed of sale dated 12.08.1947 in favour of Jhaliya Devi and registered deed of gift dated 23.09.1979 (Ext.5) executed by Jhaliya Devi in favour of the plaintiff as well as the judgments and decree passed by the trial court in Partition Suit No.39 of 1980, by the lower appellate court in T.A. No.19 of 1989 and by the High Court in S.A. No.201 of 1997 it is held that the plaintiff Smt. Rita Rani Gupta had acquired full right and title over the suit property on the basis of the aforesaid registered deed of transfer. 17. So far question of possession is concerned, apart from the aforementioned exhibits 1, 1/A, 2, 3, 4 and 8 as well as above discussed Exts.A, A/1, B, B/1, B/2, B/3 and B/4 both the parties adduced oral evidence also. Out of plaintiff’s eight witnesses PW.7 was the plaintiff herself, whereas PW.5 was her husband Bhimsen Gupta and PWs.1, 3, 6 and 8 were formal witnesses. The said PWs.5 and 7 fully supported their pleadings whereas PWs.2 and 4 deposed that the defendants had agreed that they would vacate the suit premises if they lose in the partition suit, but they did not vacate even after dismissal of their second appeal, although the plaintiff had specific requirement of the suit premises. On the other hand, three witnesses deposed on behalf of the defendants out of whom DW.1 and DW.3 were formal witnesses, only proving Exts.A and A/1 whereas DW.2 was defendant no.1 who supported the pleadings of the defendants. From a bare perusal of the aforesaid evidence, both oral and documentary it is quite apparent that the ground floor of the suit house is in occupation of the plaintiff and her husband, whereas the first floor is in possession of the defendants. It has already been held by the courts of law as mentioned above that suit property was the exclusive property of Jhaliya Devi on the basis of her purchase vide registered deed of sale dated 12.08.1947 and she validly transferred her entire right, title and interest in the suit house 11 to her daughter-in-law, namely the plaintiff by registered deed of gift dated 23.09.1979 (Ext.5), whereafter the plaintiff became exclusive owner of the suit property and there was no unity of title or jointness between the parties. Furthermore, Jhaliya Devi was admittedly the mother of Bhimsen Gupta