ASHOK KUMAR GUPTA Vs. SUSHILA D/O NIRMAL,

JUDGEMENT

(1.) The second appeal preferred by defendant No.1 was admitted for hearing by formulating the following substantial questions of law:-? "1. Whether the finding of the first appellate Court in reversing the decision of the trial Court holding that the plaintiffs have perfected their title over the suit property by way of adverse possession, is correct or not 2. Whether the finding of the first appellate Court in respect of the plaintiff's having got a right over the suit property by way of correction being shown in the revenue records after showing the original owner to have been absconded, relying the same to be a material document for declaring the plaintiffs to be the owner of the suit property, is proper or not"

(2.) The suit property shown in Schedule appended with the plaint admeasuring 8.95 acres was admittedly Manwar land held by the then Gautiya of village Jamhata and is situated at village Jamhati, Tahsil Kusmi, District Surguja. It is the case of the plaintiffs that Etwa (father of plaintiff No.1) remained in possession of suit land 12 years prior to 1954 in raiyat rights and after abolition of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called as "the Act of 1950") he remained in possession as tenant and his name came to be recorded in revenue records as it was abandoned land, for which Etwa used to pay the land revenue and after his death, it was recorded in the names of his sons Patras and Nirmal and they are in possession of the suit land. It is the father's case of the plaintiffs, that defendant NO.1 is resident of Bihar and in 1985 he came in village Jamhati and started staying therein and threatening them, he demanded document relating to title on 21.11.85 and despite report, the police has not taken any action, as such, they have no right and title over the suit land. In alternative, they have also pleaded that if it is held that the suit land is owned by predecessor-?in-?title of defendant No.1, then the suit land being abandoned land, the plaintiffs have perfected their title by way of adverse possession and as such, they are entitled for declaration of title and permanent injunction over the suit land.

(3.) Defendant No.1 filed his written statement and denied the averments made in the plaint stating inter-?alia that his father Bhikhu Sao was former Gautiya of village Jamhati and since his father was appointed on the post of Gautiya of said village, the suit land was given to him in Surguja settlement and he continued in possession during his lifetime. After coming into force of the Act of 1950, it was settled as Manwar land and by order of the Deputy Commissioner, Land Reforms on the report of the Compensation Officer and Extra Assistant Commissioner's (Ex.D-?18) he was granted raiyat rights vide Ex.D-?17 on 20.12.1951. The plea of adverse possession was refuted by defendant No.1. It was also pleaded that mutation order passed in favour of the plaintiffs was set aside by the Naib-? Tahsilar, Shankargarh on 11.12.89 (Ex.D-?11), but thereafter the order of Naib-?Tahsildar was set aside by the Sub-?Divisional Officer and against the order of the SDO, appeal/revision was said to be pending before the Commissioner at the time of institution of suit.