# Krishna Chandra & Ors v. Smt. Sarju Dei (died) & Ors - **Citation:** (2020) 7 ILRA 146 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-07-23 - **Case number:** Second Appeal No. 7 of 2008 - **Bench:** Virendra Kumar-Ii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-chandra-ors-v-smt-sarju-dei-died-ors-45857 - **Pages:** 68 ## Headnote Law - Adverse Possession - Possession of defendants on disputed portion 227-A and 227-C is "permissive possession" based on "implied permission/license" given by plaintiff. Hence defendants have not perfected their title on the basis of alleged adverse possession. (Para 141(ix)) D.W. 3 has also accepted that plaintiff, Durga Prasad, is receiving rent from tenants of aforesaid house. He never received rent from tenants of aforesaid house. It is pertinent to mention here that the entry/access of plaintiffs in disputed house was never restricted/prohibited in disputed house was never restricted/prohibited from common portions of disputed house. Defendants are unable to prove and plead specifically that when and at which time possession of defendants of disputed portions of house became adverse to title of plaintiffs. (Para 141 (x)) (a) Substantial question of law cannot be formulated only to appreciate and analyze a piece of evidence/documentary evidence. (Para 140) (b) Period of Limitation - Limitation Act, 1908: Articles 104, 136 137, 138, 140, 141, 142, 144 and 47 - Limitation Act, 1963: Articles 64, 65 - Provisions of Article 142 and 144 of Old Act and Article 65 of New Act. Article 142 and 144 of Old Act and Article 65 of New Act prescribe period of limitation 12 years from the period/ the date of the dispossession or discontinuance and when the possession of the defendant becomes adverse to the plaintiff. (Para 127) Since the respondents/plaintiffs were not dispossess by the appellants, and the defendants/appellants are only claiming themselves as co-sharers of the disputed house, 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 147 Article 142 of the Old Act would not apply to the facts and circumstances of the present case. (Para 128) Provisions of Article 144 of the Old Act and provisions of Article 65 of the New Act would apply to the facts and circumstances of the present case. Both the provisions provide period of 12 years for perfecting the title on the basis of adverse possession/ Therefore, materially and substantially both these provisions are pari materia. (Para 129) Possession over potion of disputed house was permissible possession/ license, Dargahi and his family entered in the disputed house on the basis of implied permission/license. Therefore, the defendants/appellants could not in any way perfected their title regarding disputed property. The plaintiffs are the exclusive owner of the disputed house and the defendants are not the co-sharers. The defendants are compelled to enter in shoes of their ancestors Bhagwan Das. (Para 133) Second Appeal rejected. (E-10) List of cases cited: - ## Text _Characters 0–39,960 of 228,384. This is a partial read: ask again with offset=39960 for what follows._ 146 INDIAN LAW REPORTS ALLAHABAD SERIES personal data of selected persons reflects colorable exercise of powers by the Executive. 24. In entirety, we are having no doubt that the action of the State which is subject matter of this public interest litigation is nothing but an unwarranted interference in privacy of people. The same hence, is in violation of Article 21 of the Constitution of India. 25. Accordingly, the District Magistrate, Lucknow and the Commissioner of Police, Lucknow Commissionerate, Lucknow are directed to remove the banners from the road side forthwith. The State of Uttar Pradesh is directed not to place such banners on road side containing personal data of individuals without having authority of law. 26. A report of satisfactory compliance is required to be submitted by the District Magistrate, Lucknow to the Registrar General of this Court on or before 16th March, 2020. On receiving such compliance report, the proceedings of this petition shall stand closed. ---------- (2020)07ILR A146 APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 23.07.2020 BEFORE THE HON'BLE VIRENDRA KUMAR-II, J. Second Appeal No. 7 of 2008 Krishna Chandra & Ors. ...Appellants Versus Smt. Sarju Dei (died) & Ors. ...Respondents Counsel for the Appellants: D.C. Mukerjee, Mohammad Aslam Khan Counsel for the Respondents: S.K. Mehrotra, Anurag Srivastava, I.D. Shukla, Ishwar Dutt Shukla, Santosh Kumar Mehrotra Civil Law - Adverse Possession - Possession of defendants on disputed portion 227-A and 227-C is "permissive possession" based on "implied permission/license" given by plaintiff. Hence defendants have not perfected their title on the basis of alleged adverse possession. (Para 141(ix)) D.W. 3 has also accepted that plaintiff, Durga Prasad, is receiving rent from tenants of aforesaid house. He never received rent from tenants of aforesaid house. It is pertinent to mention here that the entry/access of plaintiffs in disputed house was never restricted/prohibited in disputed house was never restricted/prohibited from common portions of disputed house. Defendants are unable to prove and plead specifically that when and at which time possession of defendants of disputed portions of house became adverse to title of plaintiffs. (Para 141 (x)) (a) Substantial question of law cannot be formulated only to appreciate and analyze a piece of evidence/documentary evidence. (Para 140) (b) Period of Limitation - Limitation Act, 1908: Articles 104, 136 137, 138, 140, 141, 142, 144 and 47 - Limitation Act, 1963: Articles 64, 65 - Provisions of Article 142 and 144 of Old Act and Article 65 of New Act. Article 142 and 144 of Old Act and Article 65 of New Act prescribe period of limitation 12 years from the period/ the date of the dispossession or discontinuance and when the possession of the defendant becomes adverse to the plaintiff. (Para 127) Since the respondents/plaintiffs were not dispossess by the appellants, and the defendants/appellants are only claiming themselves as co-sharers of the disputed house, 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 147 Article 142 of the Old Act would not apply to the facts and circumstances of the present case. (Para 128) Provisions of Article 144 of the Old Act and provisions of Article 65 of the New Act would apply to the facts and circumstances of the present case. Both the provisions provide period of 12 years for perfecting the title on the basis of adverse possession/ Therefore, materially and substantially both these provisions are pari materia. (Para 129) Possession over potion of disputed house was permissible possession/ license, Dargahi and his family entered in the disputed house on the basis of implied permission/license. Therefore, the defendants/appellants could not in any way perfected their title regarding disputed property. The plaintiffs are the exclusive owner of the disputed house and the defendants are not the co-sharers. The defendants are compelled to enter in shoes of their ancestors Bhagwan Das. (Para 133) Second Appeal rejected. (E-10) List of cases cited: - 1. Santosh Hazari Vs Purushottam Tiwari (2001) 3 SCC 179 2. Madhukar Vs Sangram (2001) 4 SCC 756 3. Jagdish Singh Vs Madhuri Devi (2008) 10 SCC 497 4. Munshi Manzoor Ali Khan Vs Sukhbasi Lal AIR 1974 SC 706, 1969 (2) UJ 343 SC 5. Nathulal Vs Ambaram 1981 SCC OnLine MP 76, 1982 MP LJ 59, AIR 1982 MP 114 6. Uma Shankar . & ors. Vs Dy. Director of Consolidation (1979) SCC OnLine All 1161, 1979 RD 305 7. Shashidhar Vs Ashwini Uma Mathad (2015) 11 SCC 269, (2015) SCC OnLine SC 26 8. Vinod Kimar Vs Gangadhar (2015) 1 SCC (Civ) 521, (2014) SCC OnLine SC 826 9. Laliteshwar Prasad Singh Vs S.P. Srivastava (2017) 2 SCC 415, (2017) 1 SCC (Civ) 680, 2016 SCC OnLine SC 1476 10. G. Amalorpavam Vs R.C. Diocese of Madurai (2006) 3 SCC 224 11. Arumgham Vs Sundarambal (1999) 4 SCC 350 12. Radha Raman Samanta Vs Bank of India (2004) 1 SCC 605, (2004) SCC (L&S) 248 13. SBI Vs S.N. Goyal (2008) 8 SCC 92, (2008) 2 SCC (L&S) 678 14. Gurunam Singh Vs Lehna Singh (2019) 7 SCC 641, (2019) 3 SCC (Civ) 709, 2019 SCC OnLine SC 374 15. Naresh and ors. Vs Hemant & ors. 2019 CC OnLine SC 1490 16. Damodar Lal Vs Sohan Devi (2016) 3 SCC 78, (2016) 2 SCC (Civ) 36, 2016 SCC OnLine SC 5 17. Uttam Chand (D) through Lrs. Vs Nathu Ram (D) through Lrs. & ors. 2020 SCC OnLine SC 37 18. Dalla Vs Nanhu (2018) SCC OnLine All 5845 19. Smt. Mamju Lata Agarwal Vs St. of U.P. & ors. (2008) 1 UPLBEC 211 20. Dagadabai Vs Abbas (2017) 13 SCC 705, (2017) 5 SCC (Civ) 718, 2017 SCC OnLine SC 431, 2017 (35) LCD 1112 21. Girish Chandra Singh Vs Sheo Nath 2013 SCC OnLine All 14241, (2013) 120 RD 337, 2013 (31) LCD 1193 22. Rama Kant Vs Borad of Revenue 2005 SCC OnLine All 49, (2005) 1 AWC 929, (2005) 98 RD 389, 2005 (26) LCD 1057 23. Thulasidhara Vs Narayanappa (2019) 6 SCC 409 24. State of M.P. Vs Dungaji (2019) 7 SCC 465 148 INDIAN LAW REPORTS ALLAHABAD SERIES 25. Narayana Gramani Vs Mariammal (2018) 18 SCC 645 26. Arulmighu Nellukadai Mariamman Tirukkoil Vs Tamiarasi (2019) 6 SCC 686 27. Chand Kaur Vs Mehar Kaur (2019) 12 SCC 202, 2019 SCC OnLine SC 426 28. State of Rajasthan Vs Shiv Dayal (2019) 8 SCC 637, (2019) 4 SCC (Civ) 203, 2019 SCC OnLine SC 1034 29. Saroop Singh Vs Banto (2005) 8 SCC 330 30. Des Raj Vs Bhagat Ram (2007) 9 SCC 641 31. Arundhati Mishra (Smt) Vs Sri Ram Charitra Pandey (1994) 2 SCC 29 (followed) 32. State of Kerala Vs Mohd. Kunshi (2005) 10 SCC 139 (Delivered by Hon'ble Virendra Kumar -II, J.) 1. Heard Shri Mohammad Arif Khan, learned Senior Counsel, assisted by Shri Mohammad Aslam Khan and Shri Mohiuddin Khan, learned counsel for the appellants and Sri I.D.Shukla, learned counsel for the respondents. 2. The present Second Appeal No. 7 of 2008: Krishna Chandra and others Vs. Smt. Sarju Devi (since dead) and others, has been preferred assailing impugned judgment and decree dated 26.09.2007 delivered by the Court of Civil Judge (Senior Division), Court No. 15, Sultanpur in Civil Appeal No. 45 of 1970. 3. The first appellate court has set aside judgment and decree dated 28.02.1970 delivered by the Court of Munsif (South), Sultanpur in Regular Suit No. 209 of 1963, by which suit of respondents/ plaintiffs was dismissed. During pendency of original suit before the trial court defendant No.1-Dargahi had expired and his legal representatives were substituted. The present matter was decided by learned trial Court Munsif South Sultanpur vide judgment dated 28.02.1970. The appellants assailed impugned judgment dated 28.02.1970 in Civil Appeal No. 45 of 1970. 4. Learned District Judge, Sultanpur dismissed aforesaid Appeal No. 45 of 1970 vide impugned judgment dated 10.11.1970. The plaintiffs/respondents preferred Second Appeal No. 2585 of 1970: Durga Prasad and another Vs. Dargahi and others, before this Court, which was decided on 01.08.1980 by coordinate Bench and matter was remanded to the first appellant court. Therefore, Civil Appeal No. 45 of 1970 was again decided by first appellate court of Additional Civil Judge-II, Sultanpur vide impugned judgment dated 09.09.1986. The first appellate court again dismissed the suit of plaintiffs/respondents. Hence, Durga Prasad (since dead) through his legal representatives Sarju Devi and Bhaiya Ram preferred Second Appeal No. 677 of 1986 : Durga Prasad and another Vs. Smt. Chameli Devi and others. This court decided Second Appeal No. 677 of 1986 on 16.12.2004 and again remanded the matter to the first appellate court. 5. The appellants of present second appeal preferred Special Appeal to Leave (Civil) assailing judgment dated 16.12.2004 passed by this court in Second Appeal No. 677 of 1986. Hon'ble Apex Court had dismissed it on 26.04.2005. 6. The first appellate court of Civil Judge (Senior Judge), Court No. 15, Sultanpur again decided Civil Appeal No. 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 149 45 of 1970 and delivered impugned judgment and order dated 26.09.2007. Learned first appellate court has set aside impugned judgment dated 28.02.1970 delivered by the trial court of Munsif South, Sultanpur and decreed the suit of plaintiffs. Learned first appellate court has directed to the appellants/defendants to vacate the disputed house within one month from the date of judgment. 7. The appellants/defendants have preferred present second appeal assailing impugned judgment and order dated 26.09.2007 delivered by first appellate court. 8. It is pertinent to mention here that during proceedings of Second Appeal No. 2585 of 1970 and Second Appeal No. 677 of 1986 and proceedings of Appeal No. 45 of 1970, original plaintiffs and defendants have expired and their legal representatives have been substituted. 9. In Second Appeal No. 7 of 2008, originally Durga Prasad and Bhaiya Ram were the plaintiffs and Dargahi, Phool Chand, and Prem Chand, Deep Chand were defendants, out of them Durga Prasad and Bhaiya Ram-plaintiffs and Dargahi, Phool Chand and Prem Chand defendants have expired. 10. The present appeal was admitted on 25.05.2009 and coordinate Bench has passed order dated 25.05.2009 and formulated substantial question of law after hearing learned counsel for the appellants. The order dated 25.05.2009 is reproduced hereunder: "Heard Sri D.C. Mukherjee, learned counsel for the appellants and Sri S.K. Mehrotra, Advocate who has put in appearance on behalf of the caveatorrespondents. Learned counsel for the appellants argued that by order dated 16.12.2004, passed in Second Appeal No. 677 of 1984, the another Bench of this Court remanded the First Appeal to the Court of District Judge, Sultanpur to decide the appeal afresh; that despite the directions of this Court that the appeal be decided by the District Judge, the appeal was decided by the Civil Judge, Senior Division. Relying upon a decision reported in 2005 (98) RD 389, Rama Kant Vs. Board of Revenue, U.P. At Allahabad as well as another decision reported in AIR 1923 Madras 351, Uthjuman smmal and another Vs. Naina Mahomed Rowther the learned counsel for the appellants argued that, thus, the First Appeal was decided against the directions given by this Court. The order dated 16.12.2004, passed by the another bench of this Court reveals that the Second Appeal No. 677 of 1984 was against the appellate judgment passed by 2nd Addl. Civil Judge. The valuation of this suit and appeal was only Rs. 4000/-. No reason is stated in the order dated 16.12.2004 as to why the appeal be not decided by the appellate court, having jurisdiction and why it should be heard and disposed of by the District Judge or Addl. District Judge. It appears that since majority of the judgments assailed in Second Appeal are the judgments given by the District Judge or Addl. District Judge, hence, under that impression, it was inadvertently dictated that the appeal be decided afresh by the District Judge. The impugned judgment was given by the Court having appellate jurisdiction over the mater. The Bench by which the order dated 16.12.2004 was passed, did not intend that the appeal be 150 INDIAN LAW REPORTS ALLAHABAD SERIES not disposed of by the Court having jurisdiction over the First Appeal. The point regarding jurisdiction has, therefore, no force. The appeal cannot be admitted on this point. The another point raised by the learned counsel for the appellants is that a Death Certificate of Harishchandra having signatures and seal of the Issuing Authority was lost or misplaced in the Court, hence, it was re-constructed. That the First Appellate Court by the impugned judgment declined to rely upon such re-constructed Death Certificate giving reasons that the death certificate has no signature or seal of the Issuing Authority. He argued that the Death Certificate has the crucial impact upon the judgment of the court below. Learned counsel for the caveatorrespondents, on the other hand, argued that death of Sri Harishchandra has no crucial impact upon the judgment of the court below. On being asked, the learned counsel for the caveator-respondents refused to admit that the death certificate of Harishchandra contains true and correct information. The appeal is admitted. The substantial question of law involved in this appeal is, (i) "Whether rejection of the re-constructed Death Certificate of Harishchandra on the ground that it has no signature or seal of the Issuing Authority, is legally correct and sustainable." Since Sri S.K. Mehrotra represents all the respondents, there is no need of issuing notices to them. The Original Suit was filed in the year 1963 and it was decided in the year 1971. The matter came repeatedly to this Court while it was pending in First Appellate Court. Therefore, there is great need that this Second Appeal be decided on top priority. Summon the lower court record within two weeks through courier or in any other efficient manner. List in 2nd week of July, 2009 peremptorily for final hearing. The operation and implementation of the impugned judgment and decree dated 26.09.2007, passed by Civil Judge (S.D.), Sultanpur shall remain stayed till next date of listing." 11. It is pertinent to mention here that this Court remanded the matter twice to the first appellate court. For the first time vide order dated 01.08.1980 passed in Second Appeal No. 2585 of 1970: Durga Prasad and another Vs. Dargahi and others. The order dated 01.08.1980 is reproduced hereunder: "The present second appeal has been filed by the plaintiffs. Admitted fact of the case are that the house was purchased by a sale-deed dated 12.9.1919 by two brothers Bhagwan Das and Sita Ram. These brothers were separate and not members of joint family at that time. On 19.2.1920 Bhagwan Das executed a sale deed in favour of Sita Ram in respect of half share in the disputed house. Subsequently he expired in 1926. The defendants in the instant case are the sons and grandsons of Bhagwandas. According to the plff, he had granted a licence to the defendants as they were the brothers son and they were in occupation of a portion of the house as licensees of the plaintiffs. According to the plaint the licence was granted in the year, 1955. The licence having been revoked, the defendants were liable to be ejected. The defence was that the saledeed executed by Bhagwandas was a fictitious document and not a real document. It was claimed that the 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 151 defendants were in possession of the property in their own right or in the alternative in adverse possession. The trial court found that the defendants were residing in the house from before 1955 and had matured title by adverse possession. The lower appellate court, however, found that the principal defendant Dargahi was brought up by Sita Ram and his wife, alter death of Bhagwan Das. However, the Court below held that the question of a adverse possession was not Rightly decided by the Munsif. He also held that the findings of the trial court that the licence was not proved and, therefore, the defendants were in adverse possession was also erroneous. However, without going into the question of the fictitious nature of the deed of the year, 1920, it held just in one line that the deed of 1920 executed by Bhagwandas in favour of Sitaram was fictitious. After hearing the learned counsel for the parties, I find that the case has not at all been dealt within a correct manner by the court below. I have seen the saledeed of the year, 1920, paper no.l1 executed by Bhagwan Das in favour of Sitaram in presence of the Sub-Registrar. The court below has also found that Dargahi was brought up by Sita Ram himself. The title of Sitaram was never before denied by the defendants. Thus title of Sitaram remained untarnished. Under the circumstances articles 65 of the Limitation Act could be applicable and not article 64. The suit was based on title and under Article 65 of the Limitation Act, the adverse possession can mature from the date when the title of the defendant becomes adverse to the plaintiff. I find that stair case, open space and other things shown in the map, which is a part of the plaint and a part of the decree are common. The plaintiff has not been excluded from those common portion by the defendant. For possession being adverse it was essential that the plff. Should have been denied access to the property. Further the finding that the defendant was residing with Sitaram and was brought up by him and his wife would certainly go to prove a case of implied licence. The lower appellate court has also held that there was no licence. However, I find that the matter, in view of Article 64 and 65 of the Limitation Act has to be decided in view of the evidence on record. I, however, find that the plff - pleaded that the license was granted to Dargahi in the year, 1955. The court below has rejected the plft's case on the ground that this Dargahi was proved to have been residing in the Mohalla or in the house from before do not go to prove the adverse nature of the defendant. The possession could be adverse only from the date when it was not claimed by the defendant and not from any imaginary point of time. The sale deed of 1920 is binding on Dargahi and his heirs. It is not disputed that Bhagwandas had executed the sale - deed. Under the circumstances the judgment and decree passed by the lower appellate court, dismissing the suit of the plff. is set aside and the case is sent down to it for deciding it afresh in accordance with law and observations made above. As the case is being remanded to the lower appellate court and the judgment and decree under appeal has been set aside, the appellant will be entitled to a refund of the court fee paid on the names of the appeal under section 13 of the court fees Act." 12. This court in Second Appeal No. 677 of 1986: Durga Prasad (deceased) and another Vs. Smt. Chamela Devi and others, passed the order dated 16.12.2004, which is as follows: 152 INDIAN LAW REPORTS ALLAHABAD SERIES "1. This is second appeal under Section 100 of Code of Civil Procedure against the judgment and decree dated 9.9.86 in Civil Appeal No. 45 of 1970 passed by IInd Addl. Civil Judge, Sultanpur dismissing the appeal against the judgment and decree dated 28.2.1970 in Regular suit No. 209 of 1963 passed by Munsif South Sultanpur dismissing the suit. 2. I have heard Shri S. K. Mehrotra for the plaintiffs - appellants and Shri PN. Mathur for the defendants - respondents. Plaintiffs' case 3. The plaintiffs - appellants filed a suit for possession against Dargahi predecessor of the respondents and his sons alleging therein that Ramanand original owner of the house in dispute executed a sale deed dated 12. 9. 1919 selling the above house for Rs. 2,000 / - to Sitaram predecessor of the plaintiff and Bhagwan Das Predecessor of the defendants who were real brother. The sale deed was registered on 18.10.1919 and possession of the house was delivered after sale. Bhagwan Das and Sitaram had half share each in the house. Bhagwan Das sold his half share in the house to Sitaram for Rs. 1, 000 / by registered sale deed dated 19.2.1920 and delivered the possession of his share to Sitaram and since then Sitaram has been the owner of the entire house. It is alleged that in 1926, Sitaram reconstructed the house. The defendant no. 1 Dargahi (deceased) came to occupy the portion of the disputed house as a licensee of the plaintiffs in 1955. Plaintiffs revoked the above license the above license vide notice dated 24.4.1963 but the defendant did not vacate it. Defendants' case 4. The case of the defendants is that they are the co-sharers of the house and the sale deed executed by Bhagwan Das dated 19.12.1920 was a sham document which was executed only with the object of saving the share of Bhagwan Das from passing to his third wife on the death of Bhagwan Das. The case of the licence was denied and plea of adverse possession was taken. Finding of the trial court 5. The trial court rejected the plaintiffs' case of grant of licence and defendants' case of adverse possession. But the plea of co-ownership taken by the defendants was accepted and the suit was dismissed. 6. Plaintiffs filed the first appeal which was dismissed. The plaintiffs - appellants filed second appeal no. 2585 of 1970 and the judgment and decree of the first appellate court dated 1.8.1980 was set aside and the matter was remanded. It is after the remand that the judgment dated 9.9.1986 has been passed Civil Appeal No. 45 of 1970; Durga Prasad and others Vs. Chameli and others which has been impugned in this second appeal. Substantial question of law 7. The following substantial question of law were formulated on 19.2.1987: "Whether the learned court below has given contrary findings on certain points which were already concluded by the order of the High Court through which the case was remanded." 8. After hearing the learned counsel for the parties and the perusal of the judgment of this court in earlier second appeal no. 2585 of 1970, I find that there is a concluded finding of the court that the sale deed dated 19.2.1920 is binding on Dargahi and his heirs and it is not disputed that Bhagwan Das had executed a sale deed. Just contrary to this finding, the first appellate court has given the finding that sale deed is a Sham transaction. The High 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 153 Court has held that title of Sitaram was never denied by the defendants and thus title of Sitaram remains untarnished. Under the circumstances, Article 65 of the Limitation Act could be applicable and not Article 64 of the Limitation Act. It was also held that from the position of the passage etc. it is established that plaintiffs were never excluded from the common portion by the defendants. For possession being adverse, it was essential that the plaintiffs should have been denied access to the property. It was also held that the defendants were residing with Sitaram and were brought up by him and it certainly goes to prove the case of implied licence. 9. It was also held that the rejection of the plaintiffs' plea of licence on the ground that Dargahi was proved to be residing in Mohalla or in house from before, dies does not prove adverse nature of possession and possession could be adverse from the date when it is so claimed by the defendants and not from any imaginary point. 10. Learned counsel for the defendants- respondents Shri P.N. Mathur has also conceded that it appears that the first appellate court has not looked into the judgment of this Court dated 1.8.1980 in Second appeal no. 2585 of 1970. Finding on substantial question 11. I am of the view that the first appellate court cannot go beyond the findings recorded by this court in second appeal at the time of remand of the matter. Therefore, the judgment of the trial court being contrary to the finding concluded by this court in the earlier judgment dated 1.8.1980 in the second appeal arising out of the same suit is to be set aside. 12. In view of the above the appeal is allowed. The impugned judgment and decree dated 9.9.1986 passed in civil appeal no. 45 of 1970: Durga Prasad and others Vs. Chameli and others is hereby set aside. Appeal is remanded to the District Judge Sultanpur to decide it afresh after hearing both the parties and after keeping in view the judgment of this court dated 1.8.1980 given in second appeal no. 2585 of 1970: Durga Prasad and other Vs. Dargahi and others. Costs easy." 13. Earlier the appellants of present appeal preferred the aforesaid Special Leave to Appeal (Civil) before the Hon'ble Apex Court. Hon'ble Apex Court dismissed Special Appeal vide order dated 26.04.2005, which is as follows: "Permission to file Special Leave Petition is granted. We are not inclined to interfere with the impugned order of the High Court. However, in view of the delay which has already taken place, it is directed that the first appellate court shall hear and decide the appeal expeditiously by giving an out of turn date of hearing in the matter. The special leave petition is dismissed." 14. On 17.02.2020 the following additional substantial question of law has been framed: "(ii) Whether in any view of the matter the impugned judgment and decree passed by learned lower appellate court is illegal, perverse and against the evidence brought on record arises as additional substantial question of law." 15. Learned Senior Counsel has argued on the basis of grounds of present second appeal that the present second appeal has been preferred by the appellants assailing impugned judgment dated 154 INDIAN LAW REPORTS ALLAHABAD SERIES 26.09.2007 on the grounds that first appellate court acted illegally and with material irregularity in reversing the judgment delivered by the learned trial Court. The learned trial court has disbelieved evidence of plaintiffs' witnesses. Learned first appellate court has not assigned any reason for taking different view. The present original suit was filed on 22.08.1963, therefore, provisions of Article 142 and 144 of old Limitation Act, prior to its amendment of 1963 were applicable, which were materially and substantially different than those of Article 65 of new Act. Learned first appellate court committed manifest error in misinterpreting the provisions of Article 144 of old Act in the light of new Article 65 of Amendment Act, which was not applicable to the facts narrated in the plaint. 16. It is also pleaded in grounds of appeal that first appellate court committed manifest error of law in rejecting the Death Certificate of Harishchandra son of original defendant no.1 on the ground that said certificate did not bear seal and signature of any authority and is only signed by the original defendant losing sight of the fact that the original certificate which was filed was sealed and signed by the authority, which were lost by the court officials and its copy was reconstructed and kept on record under the orders of the court. Therefore, first appellate Court has drawn wrong conclusion. 17. It is also mentioned in grounds of appeal that first appellate court illegally and with material irregularity in completely ignoring and not considering another material documents brought on record by the plaintiffs (Ex 25) a copy of written statement filed in S.C.C. Suit No. 20 of 1953 and its degree (Ex 26). These documents were considered and relied upon by the learned trial Court for holding that the defendant No. 1 had been residing in the house in dispute from much before the alleged license was created falsifying the case of the plaintiffs. 18. Learned counsel for appellants further argued that the first appellate court has not considered that rights of appellants/defendants matured and perfected by their adverse possession on the disputed house. The first appellate court has not considered this fact that ancestor of appellants Sri Bhagwan Das on the date of execution of sale deed dated 19.02.1920 had not delivered the possession to Sita Ram-ancestor of the plaintiffs. Sri Bhagwan Das continued to occupying the disputed house during his life time and thereafter the defendant Dargahi (since dead) continued his possession till his death and thereafter appellants are continuing in possession. 19. It is further argued and pleaded by appellants that learned Civil Judge (Senior Division) Sultanpur had no jurisdiction to hear and decide the civil appeal contrary to the specific direction given by this Court for deciding the appeal after remand by the District Judge himself. 20. On the basis of aforesaid grounds the impugned judgment and decree delivered by learned first appellate court been termed by the appellants as illegal, perverse and against the material available on record. 21. In the grounds of appeal, learned counsel for the appellants have formulated seven substantial questions of law, whereas as mentioned above, only two substantial questions of law were framed by this court 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 155 and admitted present appeal on the aforesaid two substantial questions of law only. 22. This court has discarded arguments of learned counsel for the appellants that first appellate court of Civil Judge (Senior Judge), Court No. 15, Sultanpur was not competent to decide present appeal, because this court vide order dated 16.12.2004 directed to the District Judge, Sultanpur to decide appeal No. 45 of 1970: Durga Prasad and others Vs. Chameli and others himself. 23. This court at the point of time of admission of present appeal vide order dated 25.05.2009 has specifically observed as follows: "The order dated 16.12.2004, passed by the another bench of this Court reveals that the Second Appeal No. 677 of 1984 was against the appellate judgment passed by 2nd Addl. Civil Judge. The valuation of this suit and appeal was only Rs. 4000/-. No reason is stated in the order dated 16.12.2004 as to why the appeal be not decided by the appellate court, having jurisdiction and why it should be heard and disposed of by the District Judge or Addl. District Judge. It appears that since majority of the judgments assailed in Second Appeal are the judgments given by the District Judge or Addl. District Judge, hence, under that impression, it was inadvertently dictated that the appeal be decided afresh by the District Judge. The impugned judgment was given by the Court having appellate jurisdiction over the mater. The Bench by which the order dated 16.12.2004 was passed, did not intend that the appeal be not disposed of by the Court having jurisdiction over the First Appeal. The point regarding jurisdiction has, therefore, no force. The appeal cannot be admitted on this point." 24. I have heard learned counsel for the appellants and learned counsel for the respondents. They concluded their arguments on 26.02.2020. 25. At the point of time of preparing judgment it was revealed that Exhibits-4 to 8 and 12 to 26 and the Exhibits-A-2 to A-7 and A-12 have been misplaced or weeded out by the trial court. It was reported by the concerned clerk that Natthi-Ga has been weeded out, therefore, vide order dated 16.03.2020 the District Judge, Sultanpur was directed to inquire into the matter and a report was called for whether reconstruction of these aforesaid exhibits was possible or not. It was also directed to fix the responsibility of the concerned employee regarding misplacement of aforesaid exhibits. District Judge, Sultanpur, has reported on 09.06.2020 that the Assistant Record Keeper has weeded out the Natthi-Ga of Regular Suit No. 209 of 1963 on 09.01.1979. The learned District Judge has also examined Shri Abdul Kareem, Advocate, engaged on behalf of plaintiff and Shri O. P. Lal, Advocate, engaged on behalf of defendant. Both the learned counsels have apprised the learned District Judge that they have no copy of the aforesaid documents weeded out by the Assistant Record Keeper. The District Judge has also reported that Assistant Record Keeper, Shri Ram Prakash Srivastava has expired on 10.11.1990 after taking V.R.S. on 20.07.1990. His wife is getting family pension. In the aforesaid circumstances, the District Judge has reported that reconstruction of Exhibits-4 to 8 and 12 to 156 INDIAN LAW REPORTS ALLAHABAD SERIES 26 and the Exhibits-A-2 to A-7 and A-12 is not possible. 26. Learned counsel for appellants Shri Mohammad Aslam Khan and the learned counsel for respondents, Shri I. D. Shukla, have also stated at the Bar that they have no copy of the aforesaid exhibits and the present second appeal may be decided on the basis of material available on record. 27. I have perused record of Original Suit No. 209 of 1963: Durga Prasad (since dead) and others Vs. Dargahi (since dead) and others and record of First Appeal No. 45 of 1970: Durga Prasad (since dead) and others Vs. Dargahi (since dead) and others. 28. The original plaintiffs Durga Prasad and Bhaiya Ram instituted Original Suit No. 269 of 1963 on 22.08.1963 along with plaint map, in which portion of disputed house in possession of defendant Dargahi, Phool Chand, Prem Chand and Deep Chand was marked by "red colour". Factual Matrix: 29. The brief facts contended by the plaintiffs in their plaint are that House No. 618 (A) Khata No. 620 situated in Mohalla Parkinsganj city Sultanpur was owned by one Ram Anand son of Baladin Kalwar, who sold it to Sita Ram and Bhagwan Das by means of sale deed dated 12.09.1919 for consideration of amount of Rs. 2,000/-. At this point of time Sita Ram and Bhagwan Das were living separately. Bhagwan Das and Sita Ram were having equal share in the house purchased by them. 30. It is further pleaded that Bhagwan Das sold his half share in the disputed house to Sita Ram, who is grand father of plaintiffs by means of registered sale deed dated 19.02.1920 for consideration of Rs. 1000/- and delivered possession to Sita Ram. Therefore, Sita Ram became the owner of entire house. The ancestor (Sita Ram) of plaintiffs demolished the house purchased by them and renovated it in the month of April, 1926 in accordance with a map approved by Municipal Board, Sultanpur. 31. It is also mentioned in grounds of plaint that Sita Ram died nearly 27 years back leaving behind his son Bindeshwari, who was father of the plaintiffs and nearest heirs of Sita Ram. Bindeshwari expired in the year 1954 and plaintiffs inherited the disputed house. Their names were mutated on the entire house in place of Bindeshwari. The grand father of plaintiff, their father paid and now the plaintiffs were paying House Tax and Water Tax and carried out whitewashing and repairing in it. 32. It is further pleaded that disputed house consists of seven portion of which disputed portions "A" and "C" of the house in dispute are shown in sketch map/plaint map. Five other portions are in possession of tenants. Names of tenants is mentioned in para 6 of the plaint. The disputed accommodation in possession of defendants/appellants has been numbered by Municipal Board, Sultanpur as 227A and 227C. 33. It is further pleaded that disputed portion of house of plaintiffs was given on licence in the year 1955 to defendant No. 1 to live in these portions. 34. The plaintiffs were not intending to keep defendants in the disputed portion of house as licencee. Therefore, they gave notice on 24.04.1963, which was served on defendant No.1 Dargahi (since dead) on 7 All. Krishna Chandra & Ors. Vs. Smt. Sarju Dei (died) & Ors. 157 25.04.1963. The plaintiffs asked defendants to vacate within a month, failing which, it was informed that legal action would be taken against them. The condition of license has been mentioned by plaintiffs in para-7 of the plaint. 35. The defendants instead of vacating disputed portion they expressed that they are co-owners of disputed house along with the plaintiffs and they are not willing to vacate. Hence, plaintiffs instituted the present suit. 36. During pendency of original suit, the trial Court passed order dated 09.08.1967, 16.03.1967 and 17.04.1967, on the basis of which, under orders passed by trial court, plaint was amended and on the basis of market value, valuation of suit for the purpose of payment of court fees was mentioned as amount of Rs. 4,000/- and court fees amounting to Rs. 537.50 was paid by the plaintiffs. 37. On the basis of above mentioned grounds plaintiffs sought relief for decree of possession of the portion in occupation of the defendants along with cost. 38. The defendant Nos. 1 to 3 filed their written statement, paper No.-30 Ka, jointly and defendant No. 4 filed written statement 33Ka through his guardian. In both the written statement all defendants made same contentions. In the grounds it has been mentioned that Bhagwan Das and Sita Ram had not partitioned the disputed house in the year (1919) or after it. Bhagwan Das had not sold his half share in the disputed house to Sita Ram nor he was ever ousted from it. The ancestor of the defendants Bhagwan Das had been living in the disputed portion of house purchased by him until his death. Bhagwan Das has expired. The defendants are in possession of the disputed accommodation as owners thereof. 39. It is further pleaded that Bhagwan Das died in the year 1924, when defendant No. 1 Dargahi was only 07-08 years old, hence he was brought up by Sita Ram. Sita Ram and Bhagwan Das were real brothers and at the point of time of death of Bhagwan Das they were members of joint family. It is also mentioned in written statement that mother of defendant No. 1 Dargahi expired in the year 1916, when he was six months old. Smt. Mera wife of Sita Ram brought him up. 40. It is further pleaded by defendant that Bhagwan Das solemnized his second marriage, but his second wife died issueless, then Bhagwan Das again solemnized marriage with Smt. Lakhpati. Bhagwan Das fell ill and suffered from Tuberculosis. Smt. Lakhpati was young lady, therefore, Bhagwan Das and Sita Ram got executed sham sale deed dated 19.02.1920 only to save property of Bhagwan Das from Smt. Lakhpati. In fact Bhagwan Das had not intended to sell his share in disputed property nor delivered possession to Sita Ram. The sale deed is fictitious and forged one. Bhagwan Das was younger brother of Sita Ram and was under his influence. Therefore, sale deed executed by him does not extend any benefit to the plaintiffs. 41. The defendants admitted the contentions of plaint that Sita Ram was father of Bindeshwari Prasad and plaintiffs are their descendants. It is further pleaded that defendant No.1 Dargahi was nephew of Sita Ram, therefore, he was also his heir. 42. It is pertinent to mention here that the defendant Nos. 1 to 3 has mentioned 158 INDIAN LAW REPORTS ALLAHABAD SERIES contradictory pleadings in para 4 and para 15 of written statement 30 Ka. In para-4, defendant-Dargahi contended that he resided in the disputed house purchased by his father continuously after purchase and since death of Sita Ram plaintiffs were in possession of disputed house. Whereas in para 15 he has pleaded that defendant Dargahi resided in the house with plaintiff, in which, they are residing at present and they were doing business in this house. 43. The defendants have pleaded alternatively that they are residing in the disputed house on the basis of adverse possession for more than 12 years.