Nath & Ors Vs. Dy. Director of Consolidation & Ors  INSC 323 (10
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
1988 SCR (1) 875 1987 SCC Supl. 683 JT 1987 (4) 388
for eviction from land under section 209 of the Zamindari Abolition and Land
Reforms Act-Title to land by adverse possession.
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.
the appeal (on merits), the Court, ^
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]
APPELLATE JURISDICTION: Civil Miscellaneous 876 Petition No. 1483 of 1987. (In
Civil Appeal No. 573 of 1974).
the Judgment and order dated 9.4.1973 of the Allahabad High Court in Special
Appeal No. 537 of 1970.
Bajaj and S.K. Bagga for the Appellants.
Chatterjee for the Respondents.
following order of the Court was delivered:
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.
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.
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 Six 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.
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 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 negative 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.
that view of the matter the appeal fails and is dismissed accordingly.
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.