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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