` Letters Patent Appeal No.134 OF 1994 Against the Judgment and Order passed in F.A. No. 72 of 1972 on 20th May, 1994 SUDHANSHU KUMAR SINGH & ORS. ----------(Appellants) Versus DEO PRASAD SINGH & ORS. -------------- (Respondents) ------- For the Appellants : Mr. Amarendra Nath Verma Mr. Ansay Bahadur Mathur For the Intervener : Mr. Rajendra Narain Mr. Shyam Narayan Papndey For the Respondents : Mr. Shaskhi Shekhar Dewivedi, Mr. Prem Kumar Verma, Mr. Chandra Mauli Pd. Singh, Mr. Anil Kr. Jha. ----- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. In the title suit instituted in 1966 and decreed by the Trial Court in 1971, the plaintiffs sought declaration of their title over the suit land and possession thereof. It was alleged in the plaint that one set of defendants, who lost title to and possession of the land in question to the ancestor of the plaintiffs, sold a part thereof to another set of defendants and by virtue of an order passed under Section 145 of the Criminal Procedure Code, the plaintiffs lost possession. On the pleadings and evidence tendered in 2 support thereof, it transpired that the seller of the land in question to that set of defendants, who sold the land subsequently to the other set of defendants, had title to possess and was in possession of the land in question prior to 25th May, 1933. On 25th May, 1933, the land in question was sold by the person, who was entitled to possess and was in possession thereof, to the first set of defendants, who sold the same to the other set of defendants subsequently. On 31st May, 1932 the predecessor in interest of the plaintiffs obtained a decree against that person, who was then entitled to possess and was in possession of the land in question. By reason of obtaining of such decree, at the highest, the predecessor of the plaintiffs became entile to proceed against the land in question in execution of the decree. On 25th May, 1933, the first sale took place but subsequent to that sale on 15th December, 1935 in execution of the said decree a sale certificate was issued in favour of the ancestor of the plaintiffs and against the first seller. It is not known when the application for execution was filed. The sale price was higher than the decretal dues and accordingly, the difference was taken by the first seller against whom the said sale certificate 3 was issued, who happened to be the Judgment debtor, but admittedly, who sold the land prior to withdrawal of the same. Be that as it may, by reason of issuance of the sale certificate, the title to possess was lost and accordingly, possession was required to be taken. The same could only be taken within 12 years from the date the ancestor of the plaintiffs becoming entitled to possess the land in question. That the sale certificate was put into execution and that pursuant to the execution possession was obtained, was not established. The plaintiffs contended that the certificate of obtaining possession had been lost. They contended that since the matter is old, the records have been destroyed. The plaintiffs sought to rely on circumstances and oral evidence to establish that in execution of the sale certificate, their predecessor got possession. The Trial Court accepted such contention of the plaintiffs, but in appeal, a learned Single Judge of this Court did not accept the same. Accordingly, the plaintiffs are before us in the present letters patent appeal. As regards evidence of the plaintiffs pertaining to taking of possession, there were documentary 4 evidence in the form of rent receipts emanating from 1949 to 1953 and the return filed by the ex-landlord as well as recording of the name of the plaintiffs and their ancestor in the revenue register to facilitate payment of revenue. The said set of documents had been buttressed by oral evidence of the people of the locality and of the drum beater, who came to depose on behalf of the plaintiffs. As against this, there were two principal circumstances against the plaintiffs namely, that the 8 annas co-sharer land lords granted rent receipts to the defendants or to their predecessors for the years 1935-49 in respect of the land in question and that the father of the plaintiff no.1 died before 1954 when he had filed a partition suit, where this property was not included. The partition suit of 1954 was subsequently withdrawn by the plaintiffs principally on the ground that many properties belonging to the family had not been included. The said state of affair was considered by the Trial Court as circumstance by which the plaintiffs could not be said to have represented that the land in question was no part of the land belonging to the plaintiffs and their family members. However, the plaintiff no.1 deposed that he learned from his father that the 5 land in question is part of the family properties and his father died before 1954. Thus, the reason given by the Trial Court that the admission contained in the plaint filed in the said suit should not be taken into account is not acceptable. Moreover, the fact remains that the plaintiffs either by executing the said sale certificate or by filing a suit based on the said certificate, initiated within 12 years from the date of the sale certificate, could take possession of the land in question. The same was not done. In the circumstances, by reason of Section 27 of the Limitation Act, the right of the plaintiffs to the land in question stood extinguished. There is no dispute that there was no such suit and at the same time there is no evidence that there was an application for execution of the sale certificate within 12 years from the date thereof. Payment of rent allegedly evidenced by purported issue of receipt in 1949 is of no effect, for the claim of the plaintiffs had never been on the basis of creation of a new right by the landlord, who purportedly issued the rent receipt in 1949. That being the situation, there is no scope of interference in the present Letters Patent Appeal and 6 accordingly, the same is dismissed. Patna High Court, 15th September, 2008, S.B.P./N.A.F.R. (Barin Ghosh, J.) (C.M. Prasad, J.)