UDHO AND OTHERS Vs. SMT. KHIMIAN AND OTHERS

JUDGEMENT

(1.) THE suit giving rise to this second appeal was instituted by the predecessors-in-interest of the plaintiff-respondents in the court of Munsif, Moradabad on 18-10-1966 for possession over two rooms situate in the city of Moradabad on the allegations that the property was purchased by one Uttam, father of the respondents by means of a registered sale-deed dated 29-1-1902 and since then the plaintiffs had been in possession thereof as owners, that some thatched houses were originally built up on the said property and the same had undergone changes and alterations, that Udho, defendant No. 1 had originally taken the said rooms for the purpose of tethering his cattle from Uttam s predecessor as licensee but later on Udho started paying rent to him and thus he became the tenant of the disputed property. It was alleged that Udho also paid rent to the father of the plaintiffs that the present plaintiffs had filed an earlier suit No. 335 of 1964 in the court of the Munsif, Moradabad on the basis of tenancy, which was, however, dismissed on the ground of a legal defect in the notice on 31-8-1965 and also on the finding that the plaintiffs had failed to prove that there existed the relationship of landlord and tenant between the parties. The plaintiffs, therefore, filed the present suit for ejectment against the defendants on the basis of their title. The defendants filed their written statement alleging that they had been residing in the disputed accommodation by virtue of their being the owners, that Uttam never let out the disputed accommodation to the defendants, that the plaintiffs had never been in possession within 12 years preceding the filing of the suit and the suit was barred by limitation. The defendants also took the plea that they had acquired rights of ownership by virtue of their being in adverse possession for a period of more than 12 years. Some other pleas were also raised which are no longer relevant.

(2.) THE trial court decreed the suit for recovery of possession after eviction of the defendants from the accommodation in dispute and on appeal the decree was affirmed. The findings recorded by the courts below are: (i) that the plaintiffs are the owners of the disputed property, (ii) that the defendants were the tenants of the plaintiffs, (iii) that the suit was barred by time as the plaintiffs had failed to prove their possession within 12 years prior to the suit, and (iv) that the defendants had not become owners by adverse possession.

(3.) HOLDING that there was no reliable evidence on behalf of the plaintiffs in support of their plea the issue was decided against the plaintiffs in that suit. That judgment became final between the parties and it is neither claimed nor is there any evidence of that decree having been challenged in appeal.