Judgment:
N.K. Mehrotra, J.
1. This is second appeal under Section 100 of Code of Civil Procedure against the judgment and decree dated 9.9.1986 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 P.N. 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 brothers. 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 licence 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 in Civil Appeal No. 45 of 1970, Durga Prasad and Ors. v. Chameli and Ors., which has been impugned in this second appeal.
Substantial question of law
7. 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 Count 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 this 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 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, 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 findings 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 Ors. v. Chameli and Ors., 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 Ors. v. Dargahi and Ors.. Costs easy.