BRIJ NARAYAN SHUKLA (D) THR. LRS.versusSUDESH KUMAR ALIAS SURESH KUMAR (D) THR. LRS. & ORS.

                    [2024] 1 S.C.R. 60 : 2024 INSC 9
                                   Case Details

                    Brij Narayan Shukla (D) Thr. Lrs.
                                          v.
               Sudesh Kumar Alias Suresh Kumar (D)
                        Thr. Lrs. & Ors.
                        (Civil Appeal No. 7502 of 2012)
                                 03 January 2024
                [Vikram Nath* and Rajesh Bindal, JJ.]
                             Issue for Consideration
       Whether the High Court was justified in dismissing the suit filed
       by the appellant for the relief of injunction with alternative relief for
       possession on the ground of limitation as the respondent perfected
       their rights by adverse possession.

                                     Headnotes
       Adverse possession – Suit by the appellant for the relief of
       injunction with alternative relief for possession – Dismissed by
       the High Court on the ground of limitation as the respondent
       perfected their rights by adverse possession having continued
       so since 1944 when the first suit for arrears of rent was filed
       – Justification:
       Held: Appellants got their ownership/title under the registered sale
       deed in 1966 – Dispute for possession vis-à-vis the respondents
       would arise only after the said date and not on any date prior
       to it – From the date of the sale deed, the suit was filed within
       the period of 12 years in 1975 – Even if it is assumed that the
       respondents were in possession from prior to 1944, their possession
       could not have been adverse even to the Zamindars as they were
       tenants and their tenancy would be permissible in nature and
       not adverse – There were no proceedings for possession prior
       to 1966 – First appellate court having recorded a specific finding
       that the land in suit was not covered by Zamindari Abolition as it
       was non-agricultural land, the claim of ownership from the date of
       abolition of Zamindari was also without any merit – Respondents
       thus having failed to establish their title, would have no right to
       retain the possession – Impugned judgment and order of the High
       Court is set aside and that of the First Appellate Court decreeing
       the suit for possession is maintained. [Paras 9.5-9.6]
* Author
[2024] 1 S.C.R.                                                            61

     BRIJ NARAYAN SHUKLA (D) THR. LRS. v. SUDESH KUMAR ALIAS
                SURESH KUMAR (D) THR. LRS. & ORS.


            Other Case Details Including Impugned Order and
                              Appearances

       CIVIL APPELLATE JURISDICTION : Civil Appeal No.7502 of 2012.
       From the Judgment and Order dated 15.05.2012 of the High Court
       of Judicature at Allahabad Bench at Lucknow in SA No.202 of 1980.
       Appearances:
       Shubhranshu Padhi, Ashish Yadav, Ms. Rimjhim Agnihotri, Shashwat
       Goel, Advs. for the Appellants.

                Judgment / Order of The Supreme Court

                                  Judgment
       Vikram Nath, J.
1.     The plaintiff is in appeal assailing the correctness of the judgment
       and order dated 15.05.2012 passed by the Lucknow Bench of the
       Allahabad High Court allowing Second Appeal No.202 of 1980,
       Sudesh Kumar and others vs. Brij Narayan Shukla and others,
       whereby, both the judgments of the First Appeal Court and the
       Trial Court were set aside and the suit of the plaintiff appellant was
       dismissed on the ground of limitation being barred by time.
2.     Dispute relates to an area of 3500 sq. ft. (70 ft. x 50 ft.) (2 Biswa 12
       Biswani) of Plot No.1019 situated in Village Hardoi within the limits
       of Nagar Palika Hardoi, Uttar Pradesh. The plaintiff claimed title
       through a registered sale deed dated 21.01.1966 from the erstwhile
       Zamindar Rai Bahadur Mohan Lal. They also claimed to have
       received possession pursuant to the sale deed. It is also relevant
       to mention that the land purchased was an open piece of land. In
       1975, when the appellant tried to raise the construction over the land
       purchased, the defendants objected and caused hindrance giving
       rise to the filing of the suit in question on 28.05.1975, registered as
       O.S.No.161 of 1975 praying for the relief of injunction with alternative
       relief for possession.
3.     The defendant respondent filed their written statement primarily
       alleging that there had been prior proceedings between Rai Bahadur
       Mohan Lal and his co-sharers and their tenants (ancestors of the
       respondent) in the year 1944 where a suit was filed for arrears of
       rent with respect to Plot No.1019, 1022 and 1023.
62                                                          [2024] 1 S.C.R.

                  DIGITAL SUPREME COURT REPORTS


      3.1 Further under the settlement between the Zamindar and co-
          sharers, the land in question came to Siddheshwari Narain
          and Deep Chandra in a private partition and as such these
          co-sharers became the owners of the land.
      3.2 The defendant respondents having continued in possession at
          the time of abolition of Zamindari, became the owners.
      3.3 Lastly, it was contended that soon after the sale deed of January,
          1966 in favour of plaintiff appellant, there was proceedings under
          section 145 of the Code of Criminal Procedure, 19731 in May,
          1966. In the said proceedings, it was found that the defendant
          respondents were in possession.
4.    Both the parties led evidence, both documentary and oral. The Trial
      Court found the plaintiff appellant to be the owner of the land in
      dispute as also in possession and accordingly decreed the suit for
      injunction vide judgment dated 19.09.1979.
5.    The Trial Court had placed reliance upon the sale deed, the Mutation
      and the Khasra and Khewat entries. Further, the Trial Court had
      held that the proceedings under section 145 CrPC would not be of
      any benefit to the defendant respondents as it was not clear from
      the material placed that the said proceedings related to the land in
      question.
6.    The defendant respondent preferred appeal before the District Judge
      which was registered as Civil Appeal No.14 of 1979. The District
      Judge, Hardoi, vide judgment dated 29.11.1979 dismissed the appeal.
      It however did not agree with a couple of findings recorded by the
      Trial Court and accordingly, recorded its own findings. According to
      the appellate court, the proceedings under section 145 CrPC were
      related to the land in dispute and that the possession of the defendant
      respondent was found over the land in dispute. It accordingly decreed
      the suit for possession and not for injunction as had been done by
      the Trial Court. The Appellate Court further held that the plaintiff-
      appellants were the owners of the land in dispute and they had been
      successful in establishing their title.


1     CrPC
[2024] 1 S.C.R.                                                            63

     BRIJ NARAYAN SHUKLA (D) THR. LRS. v. SUDESH KUMAR ALIAS
                SURESH KUMAR (D) THR. LRS. & ORS.

7.     Another finding recorded by the Appellate Court was that the land
       in dispute was a non-agricultural land and there was no question of
       abolition of Zamindari with respect to the said land and therefore the
       claim of the defendants of becoming the owners on the abolition of
       Zamindari was not correct. It further found that the suit for arrears of
       rent filed in 1944 was with respect to some other land and not the
       land in dispute in as much as the suit land was vacant open piece
       of land whereas the 1944 suit for arrears of rent was with respect
       to the house of the defendants. Even the plot areas in the two suits
       were different. The Plot No.1019 being a huge piece of land where
       as the plaintiff appellant had purchased only a part of it, they had
       derived valid title from the Zamindars, the erstwhile owners.
8.     It accordingly held that the period of 12 years for perfecting rights on
       the basis of adverse possession would commence from 1966 and
       the suit having been filed in 1975 was well within time.
9.     The defendant respondent preferred Second Appeal before the High
       Court which was registered as Second Appeal No.202 of 1980. It
       is this appeal which has been allowed by the impugned judgment
       giving rise to the present appeal. The High Court dismissed the suit
       of the appellant on the ground of limitation as according to it, the
       defendant respondent had matured their rights or rather perfected
       their rights by adverse possession having continued so since 1944
       when the first suit for arrears of rent was filed. We are, however, of
       the firm view that the High Court fell in serious error in holding so,
       for the following reasons:
       9.1 It has not dealt with the findings recorded by the Trial Court and
           the First Appeal Court with respect to the issue of Limitation
           and the evidence considered by them.
       9.2 The High Court was hearing the Second Appeal under section
           100 of Code of Civil Procedure, 19082 and it having reappreciated
           the findings to disturb findings of fact, committed an error.
       9.3 The High Court has not recorded any finding that the plaintiff
           appellants were not the owners or that they have failed to prove
           the ownership.



2     CPC
64                                                          [2024] 1 S.C.R.

                  DIGITAL SUPREME COURT REPORTS


      9.4 The suit of the year 1944 was for the arrears of rent and not
          relating to any dispute of possession. The defendant respondents
          were tenants and therefore their possession was permissive
          as against the then landlords. There was no question of them
          claiming any adverse possession from 1944.
      9.5 In our considered view, the plaintiff appellants got their
          ownership/title under the registered sale deed on 21.01.1966.
          The dispute for possession vis-à-vis the defendant respondents
          would arise only after the said date and not on any date prior
          to it. Admittedly from the date of the sale deed, the suit was
          filed within the period of 12 years in May, 1975. Even if it is
          assumed that the defendant respondents were in possession
          from prior to 1944, their possession could not have been adverse
          even to the Zamindars as they were tenants and their tenancy
          would be permissible in nature and not adverse. There were
          no proceedings for possession prior to 1966.
      9.6 Further, the first appellate court having recorded a specific
          finding that the land in suit was not covered by Zamindari
          Abolition as it was non-agricultural land, the claim of ownership
          from the date of abolition of Zamindari was also without any
          merit. The finding has not been disturbed by the High Court.
          The defendant-respondents thus having failed to establish their
          title, would have no right to retain the possession.
10. Accordingly, the appeal is allowed, the impugned judgment and order
    of the High Court is set aside and that of the First Appellate Court
    decreeing the suit for possession is maintained.
11. There shall be no order as to costs.
12. Pending application(s), if any, is/are disposed of.


      Headnotes prepared by: Nidhi Jain   Result of the case: Appeal allowed.