Second Appeal No. 865/1998. Case: Shanti Bai Agrawal and Ors. Vs Uma Bai Agarwal and Ors.. Chhattisgarh High Court
| Case Number | Second Appeal No. 865/1998 |
| Counsel | For Appellant: Ravish Agrawal, Sr. Advocate and K.S. Jha, Advocate and For Respondents: H.B. Agrawal, Sr. Advocate and Meera Jaiswal, Advocate |
| Judges | Goutam Bhaduri, J. |
| Issue | Indian Partnership Act, 1932 - Sections 42, 45, 46, 47, 48, 48(b)(iv), 49; Limitation Act, 1963 - Section 27 |
| Judgement Date | March 19, 2015 |
| Court | Chhattisgarh High Court |
Judgment:
Goutam Bhaduri, J.
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This instant appeal is preferred against the judgment & decree dated 04.07.1998 passed in Civil Appeal No. 37-A/97 by the Second Additional District Judge, Bastar (Jagdalpur). By such judgment & decree, the appellate Court reversed the judgment & decree dated 25.01.1997 passed in Civil Suit No. 226-A/96 by the Third Civil Judge Class-II, Jagdalpur. The instant appeal is by the plaintiff.
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The briefly stated facts of the case is that a suit was filed by the appellant against Trilokinath Agarwal, Smt. Usha Kiran Agarwal and Deepak Agrawal for declaration and permanent injunction. The undisputed facts are that the house comprised over the Nazul sheet No. 78, Plot No. 103/2, admeasuring 6285 sq.ft. was recorded in name of M/s. Gajadhar Prasad Kashi Prasad, a partnership firm. The firm had four partners namely Bhuwneshwar Prasad Agarwal (died on 13.07.1962), Udaynarayan Agarwal (Plaintiff), Trilokinath Agarwal (Defendant-1) and Smt. Singharabai (died on 21.09.1973). The said property was in name of the firm M/s. Gajadhar Prasad Kashi Prasad and plaintiff was residing in the said property right from the year 1943. The partnership firm was dissolved on 02.11.1956. After dissolution of the firm, the plaintiff, who was a partner continuing to reside in the house and was in possession thereof which had also a shop in some portion of the house. It was case of the plaintiff that he was/is in exclusive possession of the suit property for last 12 years after the dissolution, as the suit was filed in the month of September, 1994. The plaintiff/appellant pleaded that by ouster of the title of the defendants after dissolution, the plaintiff was in possession and therefore had acquired the right and title over the suit property by way of adverse possession. It was stated that one of the partner Bhuwneshwar Prasad Agarwal died on 13.07.1962 and Smt. Singharabai died on 21.09.1973 and it was also contended that during the life time of Bhuwneshwar Prasad Agarwal, the plaintiff was in possession of the suit land. It was further contended that on 23.06.1992, the defendants filed an application before the Nazul Tahsildar, Jagdalpur to mutate their name. It was therefore for such reason, the title of the plaintiff was denied as the plaintiff had acquired the title over the suit land by way of adverse possession. Consequently, the suit for declaration and permanent injunction was filed.
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In reply to the averments, the defendants stated that the subject land is recorded in name of M/s. Gajadhar Prasad Kashi Prasad at Pratapganj Ward, Main Road, Jagdalpur. It was also stated that the suit property comprised to be the property of the firm. The death of the two partners were also admitted and further this fact was also admitted that on 02.11.1956 the firm was dissolved. It was further denied that the plaintiff was in exclusive possession of the land for last 12 years from the date of filing, thereby has acquired ownership of the property. It was further contended that Bhuwneshwar Prasad had bequeath his part of property in favour of the defendants No. 2 & 3 by Will dated 12.07.1961 and as such they were entitled to get their name mutated in respect of the suit land.
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On the basis of the pleadings and the evidence of the parties, the learned trial Court found that the Will was not proved whereby the defendants had claimed their right and further decreed the suit in favour of the plaintiff by holding that the plaintiff had acquired the title over the suit property by way of adverse possession. The order of permanent injunction was also passed in favour of the plaintiff. The said finding were assailed by the respondents before the Second Additional District Judge, Bastar. The appellate Court by the judgment & decree dated 04.07.1998 has reversed the finding by holding that the defendants are the co-sharers. Consequently, the plaintiff would not get any title over the property by way of adverse possession.
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With respect to the finding of the Will, no challenge was made. The appellate Court further held that the property belong to a joint Hindu property and as such the question of adverse possession do not arise if the property is held by one of the co-sharers and consequently the judgment & decree was reversed. Against such judgment & decree, the instant second appeal was preferred. The second appeal was admitted on the following substantial questions of law:
Whether the First Appellate Court has erred in reversing the trial Court's finding that the plaintiff had perfected his title over the disputed property (house) by adverse possession?
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The learned counsel for the appellant submits that admittedly the property belonged to a firm, thereafter, the firm was dissolved on 02.11.1956; therefore, the remedy would be governed by Section 48(b)(iv) of the Partnership Act, 1932, which speaks about the mode of settlement of accounts between partners. It is further submitted that once the firm having been dissolved, the property held by such firm will be treated to be a movable property and therefore the concept of co-ownership as has been held by the appellate Court is completely perverse. It was further contended that after the firm is dissolved, the authority of the...
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