W D NAROHNA Vs. TRIJUGI NARAYAN

JUDGEMENT

(1.) This is a Defendant's appeal arising out of a suit for possession of a plot of land No. 231 in the city of Kanpur, which has been decreed by the lower appellate court which reversed the decree of the trial court dismissing the suit.

(2.) The suit was brought on the allegation that the Plaintiff was the owner of the disputed plot; that he had given it on lease to De-Walde Company in 1914 for a period of five years renewable for another five years; that the aforesaid Company relinquished this plot some time in 1924 and there after the Plaintiff had been in possession of it; that in 1942 the Defendant, who obtained a certain transfer from the De-Walde Company obtained wrongful possession over this land and refused to vacate it when he was asked to do so. In 1942 the present Plaintiff had filed a suit against the Defendant in respect of the disputed land as well as some other property on the ground that the Defendant had wrongfully taken possession of it. The Defendant contested that suit. The Plaintiff made an application to withdraw that suit on account of some legal defect. He was permitted to withdraw the suit with liberty to file a fresh suit in respect of the disputed land but in respect of the remaining property the suit was dismissed. The suit which has given rise to this appeal was filed in 1946 more or less on the same allegations on which the former suit, No. 334 of 1942, had been filed against the Defendant. The Defendant contested the suit on several grounds. He pleaded that the Plaintiff was not the owner of the disputed land, that he was not in possession of it within 12 years of the suit and that the Defendant had acquired title to it by adverse possession. Two other points were raised, one of which was that the suit was not maintainable in view of the order of this Court dated 6-5-1946 passed in S.A. No. 334 of 1942, and the other was that the suit was not cognizable by the civil court.

(3.) The trial court decided all issues in favour of the Plaintiff except issue No. 3 on the question of limitation. If found on this issue that the Defendant had acquired title by adverse possession for more than 12 years and so the Suit was barred by limitation The lower appellate court did not agree with the finding of the trial court. It was of the opinion that the Plaintiff had obtained possession over the property in dispute in 1924 or 1925 and there was a presumption of continuity of possession in his favour; that the Defendant was not in adverse possession of the disputed property. It accordingly allowed the appeal and set aside the decree of the trial court and decreed the suit for possession.