BANSHILAL BUDHRAM SAHU Vs. MOHAMMAD JAVED AHMAD

JUDGEMENT

(1.) The appellants/plaintiffs have filed this Second Appeal under Sec. 100 of the Code of Civil Procedure against the impugned judgment and decree dtd. 28/8/2017 passed in Civil Appeal No 34-A/2016 by the learned Additional District Judge, Dhamtari, District Dhamtari (Annexure A/1) arising out of judgment and decree dtd. 22/2/2010 passed by the Civil Judge, Class II, Nagari, District Dhamtari in Civil Suit No.34-A/2008 (Banshilal and others vs. Mohammad Javed Ahmad and others) by which the learned trial Court has dismissed the suit filed by the appellants/plaintiffs.

(2.) The names of the parties have been described as per their description in the suit.

(3.) The facts as reflected from record are that the plaintiffs have filed a suit bearing Civil Suit No 34-A/2008 for declaration of title and permanent injunction with regard to suit property situated at village Mukundpur, Patwahi Halka No.8, RNM Sihava, Tahsil Nagari, District Dhamtari bearing Khasra No. 542, 543, 544 and 545 area 0.10, 0.10, 0.02 and 0.03 respectively total 0.25 RA was recorded in the name of Shakil Ahmed who was father of the defendants No.1 and 2. The said suit property was sold orally by Shakil Ahmad to Budhram who was father of plaintiffs on 11/6/1978 and acknowledgement receipt was also received which is related to one portion of the suit property area .02 decimal and the remaining portion of the suit property was sold by Masood Ahmad with consent of his brother in favour of the plaintiffs and possession has already been given in the year 1978. It was assured that the registration of the sale deed will be done when all the brothers are present within one year but the sale deed has not been executed till the plaintiffs' father expired. It has also been contended that in the suit property the plaintiffs have already constructed the house and kitchen garden and they are in possession of the suit property for the last 25 years. It has also been contended that the suit property was recorded in the name of Maksud and as the sale deed has not been executed within one year since 1978, but they are in possession of property, as such as per principle of adverse possession, they became property holder of the suit property. It has also been contended that this fact was known to Masood Ahmad and for more than 12 years, the possession of the property was within the knowledge of the defendants' father, as such they became owner of the property. It has also been contended that the plaintiffs' father died prior to 10-12 years and during life time late Budhram has already done oral partition between his son and the possession has been given to the plaintiffs as per the details given in the cause title. Since the plaintiffs are in possession of the property and as per the principle of adverse possession, they became title holder over the property. As such, the suit has been filed for claiming the decree of possession on account of adverse possession and also prayed for grant of permanent injunction by restraining the defendants in interfering with the peaceful possession of the suit property.