KISHAN LAL Vs. SUNDER DAS

JUDGEMENT

(1.) This is a Plaintiff's second appeal arising out of suit filed for possession by demolition and also for recovery of Rs. 72/- as damages for wrongful use and accupation. It has been found by both the Courts below that defendants were plaintiff's tenants who constructed latrine over plaintiff's land and have been using it since 1940. It has been argued by learned counsel for appellant that lower appellate Court committed an error of law in recording the finding that plaintiff had title over the land in dispute. The submission is not without merit. It is true that an issue was framed whether plaintiff was owner of the land and the Court recorded the finding in favour of plaintiff on this issue but did not grant any relief as defendants had become owner by adverse possession. In appeal the plaintiff challenged the finding of adverse possession. He was not aggrieved by the finding that he was owner of the land in dispute. The lower appellate Court therefore committed an error of law in setting aside the finding of plaintiff's ownership in plaintiff's appeal and in absence of any cross objection. Similarly the finding of adverse possession by the two Courts below appear to suffer from manifest error of law. The defendants are tenants. If they constructed latrine over plaintiff's land for beneficial enjoyment of their tenements to which the plaintiff did not object they would not acquire title of ownership of adverse possession. The decree of the Courts below however is not liable to be set aside because the plaintiff having acquiesced in the construction and use of latrine since 1940 is estopped either from claiming possession by demolition or damages from defendants. In the result the finding of lower appellate Court on ownership and of the two courts on adverse possession is set aside but the order dismissing the suit is maintained. The parties shall bear their own costs. .