IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.130 of 2003 DURGA SINGH & ORS Versus DEONANDAN SINGH & ORS ----------- 10/ 01.05.2008 Heard learned counsel for the appellants. This Second Appeal has been filed on behalf of defendant- appellants challenging judgment and decree dated 05.04.2003, by which learned 2nd Additional District Judge, Aurangabad, dismissed Title Appeal No. 2/1996(13/1998) and confirmed judgment and decree dated 21.12.1995 of the learned Subordinate Judge-I, Aurangabad, decreeing Title Suit No. 78/93(16/94) filed by plaintiff- respondents first set for declaration that the plaintiffs have acquired an indefeasible subsisting title in the suit land while the principal defendants ( appellants no.1 to 5) have no manner of right, title, interest or possession in the suit land and four sale-deeds dated 19.09.1990 executed in favour of the defendants were collusive, void, inoperative and illegal and not binding on the plaintiffs and also for confirmation of possession and in alternative for recovery of possession with respect to the suit land. In the instant second appeal, two grounds claiming to be substantial questions of law have been raised by learned counsel for the appellants at the time of its hearing under Order 41 Rule 11 of the Code of Civil Procedure. The first ground raised on behalf of the defendant-appellants is that the suit is barred by law of limitation (section 64) as it had been instituted on 13.07.1993 after 16 years, 11 months and one day from the date of final order dated - 2 - 12.08.1976(Ext.M) passed under section 145 of the Code of Criminal Procedure ( hereinafter referred to as ‘the Cr.P.C.’ for the sake of brevity ) between the predecessors in interest of the defendants and the plaintiffs. In support of his contention, learned counsel for the appellants relied upon several decisions, namely, (i) A.I.R. 1966 S.C. 605 ( Ambika Prasad Thakur & Ors. Vs. Rem Ekbal Rai.), (ii) A.I.R. 1956 Patna 116( Rudra Pratap Singh & Ors. Vs. Jagdish Mahraj & Ors. ) , (iii) 1987 Cr.L. J. 1950 ( Kuleshwari Devi Vs. Jagdamba Devi) and 1947 Lahore 173 ( Sewa Das Vs Ram Parkash ). . The learned courts below have considered the said point and have come to a specific finding that defendant-appellants have themselves filed a petition before the Sub-Divisional Magistrate, Aurangabad, for deputation of a Magistrate for constructing boundary wall, whereafter, on 02.12.1991 the Sub-Divisional Magistrate passed an order for deputation of a Magistrate and police force. Against the said order, plaintiff-respondents filed C.W.J.C.No. 2689/1992 before this Court and this Court quashed the said order of the Sub-Divisional Magistrate (Ext.M/11). In the said facts and circumstances as well as from the materials on record, the learned courts below found that it was clear that in the year 1991-92, defendant-appellants were not in possession of the suit properties and hence there was no question of any limitation as the suit was filed in the year 1993. The learned courts below have specifically held that the order passed in the proceeding under section 145 of the Cr.P.C. will not create any bar against the - 3 - plaintiffs nor will it create any right and title with respect to the suit properties in defendant-appellants. In the said circumstances, the said finding of the learned courts below cannot be said to be erroneous. The aforesaid case laws cited by learned counsel for the appellants are not applicable to the facts and circumstances of the case. The second question raised by learned counsel for defendant-appellants is that from the materials on record including the statements of the plaintiffs, it is quite apparent that Sahodari Devi predeceased her husband Dheman Mallah and hence the sale-deeds executed by her in the year 1973 are clearly illegal and void as the right and title after the death of Dheman Mallah vested in his two sons Jageshwar and Mathura. The said issue is an issue of fact, which has been considered and decided by both the learned courts below by concurrent finding of fact that Sahodari Devi died after Dheman Mallah and she remained his widow and the said Dheman Mallah was not issueless and had a son Mathura Mallah. In the said circumstances, this ground of fact raised by the appellants in the instant appeal cannot be considered at this stage. In the aforesaid facts and circumstances, it is quite apparent that the appellants have failed to make out any substantial question of law for consideration by this Court and, accordingly, this Second Appeal is dismissed. MPS/ ( S. N. Hussain, J. )