Full Judgment Text
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PETITIONER:
RAM NATH AND OTHERS
Vs.
RESPONDENT:
DY. DIRECTOR OF CONSOLIDATION AND OTHERS
DATE OF JUDGMENT10/11/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
OZA, G.L. (J)
CITATION:
1988 SCR (1) 875 1987 SCC Supl. 683
JT 1987 (4) 388
ACT:
Suit for eviction from land under section 209 of the
Zamindari Abolition and Land Reforms Act-Title to land by
adverse possession.
HEADNOTE:
The High Court allowed the writ petition and quashed
the order of the Deputy Director of consolidation. The
appellants filed appeal in this Court against the order of
the High Court. The appeal came up for hearing on May 7,
1987, when it was dismissed for default of appearance, where
after an application for restoration was filed on the ground
that counsel for the appellants was busy in the High Court
at the time of hearing of the appeal. This Court found no
justification for recalling its order, dismissing the
appeal, but in view of the fact that the appellants would
suffer for no fault of theirs, decided to hear the matter,
directing that this practice should not be permitted in this
Court any further.
Dismissing the appeal (on merits), the Court,
^
HELD: There is no merit in the appeal. The High Court
was right in holding that the respondents (concerned) were
in possession of the land in 1958 when the case started
under section 145 of the Cr. P.C. and their date of
occupation could not be later than 8.5.1958, so that the six
years’ period of limitation for a suit for their eviction
under section 209 of the Zamindari Abolition and Land
Reforms Act would start running from July 1, 1958 and expire
on June 30, 1964 i.e. before the consolidation operations
commenced. The appellants contended that there was a break
in the possession of the respondents concerned between
8.5.1958 and 29.1.60, but during that period the land was in
the custody of the Criminal Court which must be deemed to
have been holding possession of the land on behalf of the
person eventually found to be entitled to possession. The
respondents had matured their title by adverse possession
and there could be no warrant for denying them the status of
rightful owners. There was no break in the possession of the
respondents and they must be held to have been in continuous
occupation at least from May, 1958. 1877A-F]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Miscellaneous
876
Petition No. 1483 of 1987. (In Civil Appeal No. 573 of
1974).
From the Judgment and order dated 9.4.1973 of the
Allahabad High Court in Special Appeal No. 537 of 1970.
P.K. Bajaj and S.K. Bagga for the Appellants.
G.S. Chatterjee for the Respondents.
The following order of the Court was delivered:
O R D E R
The appeal was listed on 7.5.1987 before a bench
consisting of Hon’ble Mr. Justice G.L. Oza and Hon’ble Mr.
Justice K.N. Singh. The order recited "Heard learned counsel
for the respondent for sufficient time. No one appears for
the appellants. The appeal is, there fore, dismissed in
default."
This C.M.P. was subsequently filed for recalling the
order on the ground that the learned counsel was busy in the
Delhi High Court on that date. It was further stated there
"But when after arguing two cases viz. Company Petition No.
110 of 1983 Ishwar Singh and others v. Dharam Singh and
others, (final hearing) and also other regular matter Suit
No, 49 of 1976 A.C. Tamra v. Mercury Production (part heard)
in the High Court of Delhi at New Delhi he (meaning thereby
the counsel for the appellant) came to this Hon’ble Court,
he came to know that this appeal had reached for hearing and
was dismissed for default". This petition is signed not by
the appellant but by M/s. Bagga & Co., Advocates for the
appellant. It is verified by an affidavit of one P.K. Bajaj
who state that he had been instructed to appear and argue
the appeal. We are not sure as to who is making this
application and whether the appellant is at all aware of
these events. We find no justification for recalling the
order on the plea that the counsel was busy somewhere. We
were not inclined to act upon this kind of plea but on the
basis that otherwise the appellant would suffer loss for no
fault of his, we have decided to hear the counsel. This
practice should not be permitted in this Court any further.
On perusal of the judgment of the High Court we find no
merit in this appeal. By the impugned judgment of the High
Court of Allahabad, writ petition was allowed and the order
of the Deputy Director of Consolidation dated the 25th
October, 1967 was quashed.
877
The learned Judge has recorded that the respondents
herein A have been held to be in possession in 1958 when the
case started under Section 145 of the Code of Criminal
Procedure and their date of occupation could not be later
than 8.5.1958 with the result that the sjx years’ period of
limitation for a suit for their eviction under Section 209
of the Zamindari Abolition and Land Reforms Act would start
to run from 1st July, 1958 and would expire on 30th June,
1964 i.e. before the consolidation operations commenced.
It was, however, contended on behalf of the appellants
herein that there was a break in the possession of the
respondents between 8.5.1958 and 29.1.1960, but it was
obvious that though the land was in the custody of the
criminal court during that period the court must be deemed
to have been holding possession on behalf of the person
eventually found to be entitled to possession. We are of the
opinion that the learned Judge was right in so holding. It
was argued that there was no justification for treating the
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respondents to be entitled for possession of the land as
they had occupied the land as mere trespassers but it was
found that they had matured their title by adverse
possession and there could be no warrant for denying them
the status of rightful owners. The learned Judge did in the
absence of any finding by a competent court negativing the
respondents claim was of the opinion that they must be
deemed to have been in persons entitled to possession of the
disputed plots with the result that during the period
between 8.5.1958 and 29.1.1960 the criminal court must be
held to have been in possession of the land. In that view of
the metter there was no break in the possession of the
respondents and they must be held to have been in continuous
occupation at least from May, 1958. In that view of the
matter the other contentions urged before the High Court
need not be noticed.
In that view of the matter the appeal fails and is
dismissed accordingly.
No one appears for the respondent. Therefore, there is
no question of costs. We, however, direct the Registry to
transmit a copy of this order to the appellant directly at
the costs of Advocate for the appellant.
S.L. Appeals dismissed.
878