IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.88 of 2011 Tara Devi Versus Sheikh Nizamuddin & Ors ---------------------------------- 5 15-12-2011 Heard Mr. Ranjan Kumar Dubey, learned counsel appearing on behalf of the appellant. The appellant is the defendant in the suit and has filed this second appeal against the judgment of reversal. Admittedly, the suit property belonged to Jamuna Sah who had three sons, namely, Rama Sah, Vishwa Nath Sah and Ganpat Sah. The plaintiff in the suit claimed the purchase of the suit land from Ganpat Sah whereas the appellant, who was defendant no.2, has claimed her title over the suit property on the basis of purchase from Radhika Sah with the assertion that Radhika Sah had purchased the suit property from Jamuna Sah in the year 1948 through unregistered sale deed. It is also the case of the defendant that there had been a proceeding under section 145 Cr.P.C. between the parties in which the possession of the defendant over the suit property has been declared. The trial court, after hearing the parties and considering their evidence, has come to the finding that the suit land had been validly sold by the Karta of the family in the year 1948 and therefore the plaintiff did not acquire title over the same by virtue of purchase thereafter from one of the sons of the Karta, Jamuna Sah. It has also been found that in the 145 Cr.P.C. proceeding the possession of the defendant no.2 has been declared with the finding that her building stands over the same. 2 In appeal, however, the appellate court reappraised the evidence of the parties in view of the rival submissions and has come to the finding that Ext.A, which is the unregistered sale deed executed by Jamuna Sah in favour of Radhika Sah, had never been an operative document and the same had not been executed by Jamuna Sah. The appellate court has further also concluded that the finding with regard 145 Cr.P.C. proceeding is not binding on the civil court with the observation that as the defendants also belong to the family of Jamuna Sah the existence of their houses was natural. After also considering the other submissions and evidence on record, the appellate court below has held that Ganpat Sah has validly sold the suit land in favour of the plaintiff, who is in possession over the same. The learned counsel appearing on behalf of the appellant has vehemently argued that no issue with regard to the validity of the sale deed(Ext.A) has been framed by the courts below and therefore any finding on the same would be vitiated. It has also been urged by the learned counsel that defendant no.2 has raised the plea of adverse possession in the written statement and asserted to be in possession of the suit land for more than 12 years, but the same has also not been considered by the appellate court below before allowing the appeal. As such, it is the submission of the learned counsel that the judgment passed by the appellate court below is vitiated and the substantial question of law arises for consideration in this second appeal. After perusal of the judgments of both the courts 3 below and considering the submissions of the learned counsel ,it appears that admittedly the suit property originally belonged to Jamuna Sah and the plaintiff has based his claim over the suit land through sale deed executed in his favour by one of the sons of Jamuna Sah, namely, Ganpat Sah. Resisting the claim of the plaintiff the defendant no.2 has come forward with the assertion to have purchased the suit land from Radhika Sah stating that Radhika Sah had acquired valid right, title and interest over the suit land through an unregistered sale deed executed by Jamuna Sah. Therefore, the dispute regarding the validity of the rival sale deeds has already been there and the parties have been conscious of the said dispute and have also led their full evidence. The courts below have considered the evidence of the parties and thereafter recorded their findings. The appellate court has also considered the subsequent dealings by Jamuna Sah in the year 1969 of the part of the land, claimed by the defendant no.2 to have been already sold by him to Radhika Sah, by executing a mortgage deed(Ext.3), and the sale deed(Ext.3/A) dated 1-4-1980 executed by Vishwanath Sah with regard to some plots which the defendant no.2 has alleged to have been already sold by (Ext.A) and has rightly come to the conclusion that the unregistered sale deed(Ext.A) had never been acted upon and has not seen the light of the day in between 2-5-48 upto 1-10-86. It has been further also held that the unregistered sale deed (Ext.A) is not above suspicion. It is well-settled that when the parties have gone to trial being fully aware of the dispute arising between them and have led their 4 evidence in full, the non-framing of the issue with regard to a particular issue in dispute cannot be said to be momentous enough to vitiate a finding of fact recorded on the basis of appreciation of evidence of both the parties. As such, there is no force in the argument of the learned counsel that the judgment of the appellate court is vitiated on that score. The learned counsel, thereafter, has forcefully argued that the claim of adverse possession raised by defendant no.2 has not been at all considered by the appellate court below and no issue has also been framed in that regard. It has been contended by the learned counsel that defendant no.2, since after the purchase, has been coming in possession over the suit land and the fact regarding her possession over the suit land is also supported by the order passed under section 145 Cr.P.C. and as such the judgment of the appellate court is vitiated on this score. It is not in dispute that defendant no.2 has claimed title over the suit land on the basis of her purchase by sale deed dated 22-2- 1986 from Radhika Sah and she has also claimed to be in possession over the suit land on that basis. It is no where the case of defendant no.2 that she had accepted the plaintiff to be the real title holder and thereafter she continued in possession over the suit land to the knowledge of the plaintiff asserting her hostile title. For successfully establishing a claim on the basis of adverse possession the two ingredients i.e., animus possidendi and corpus possessionis must be there. Possession of a person over the property, for howsoever long it may be, cannot qualify itself as forming the basis for claim for adverse possession unless it is 5 accompanied with the necessary intention to possess the property of others. The absence of title of the person in possession of the property is one of the essential elements for successfully establishing his claim of adverse possession over the said property. The defendant no.2 has, no where in the written statement, made averment that she has admitted the plaintiff to be the real owner and thereafter she has claimed to be in possession asserting her hostile title. As such, the submission with regard to adverse possession is misconceived and not supported by the facts as pleaded. In view of the aforesaid discussions, there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. roy ( V. Nath, J.)