SARYU PRASAD Vs. KESHRI PRASAD

JUDGEMENT

(1.) This First Appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 28/03/2007 passed by Additional Judge, Mauganj to the Court of Additional District Judge, Mauganj, District Rewa, in Civil Suit No.16-A/2004 whereby the learned ADJ rejected the civil suit filed by the appellants seeking themselves to be declared as the owners of the pond (Talab), the land survey no. 122 area 4.18 acres on which it is built, and survey nos. 121,123 area 2.42 acres, survey no.130 area 2.42 acres, situated around the pond at village Bara, Tehsil Mauganj District Rewa (M.P.), (hereinafter referred to as "suit land") and to direct the respondents/defendants no. 1 to 7 to not to obstruct them from using the suit land and for also issuing a mandatory injunction against the respondents no. 1 to 7 that they will remove the hut etc. made by them upon suit land and to direct them to pay an amount of Rs.60,500/- as compensation.

(2.) Notably, during pendency of this appeal, the respondent No.7 defendant of the suit Ramanuj died and his LRs' were brought on record as respondent 7(a) and 7(b) by names of Kashi Prasad Tiwari and Raghuvendra Tiwari, vide order dated 01/02/2012. It is further notable that the notice sent to Shiv Ramdas, Respondent No.8 returned with the endorsement that he had died, but appellants neither deleted his name from the cause title of the Appeal nor did they bring on record the legal representatives of Shiv Ramdas.

(3.) Brief facts of the case are that the appellants/plaintiffs of the suit Saryu Prasad and his son Arvind Kumar, filed a Civil Suit no.16A/2004 before A.D.J, Mauganj, District Rewa averring they are the owners of the suit land, on which a pond (Talab) is also situated. Initially, suit land belonged to late Baba Jhuledas and the pond (Talab) was built by him on the suit land. After the death of late Baba Jhuledas, late Parsandas became the owner of the suit land and remained in possession of the entire land as owner during his lifetime. After the death of late Parsana Das, suit property transferred to his son Ramvishal and he remained in possession of the entire suit land till his death in the year 1976 when his son Rampal Das @ Rajpal Das became the owner of the Suit land. During the lifetime of late Ramvishal, the entire suit land was looked after by late Hublal, father of the appellant no.1 and his brother Gaya Prasad, and they used to irrigate their land by taking water from the pond with the permission of late Ramvishal. In the year 1993, some of the respondents moved an application before the collector Rewa requesting to restrain Gaya Prasad from irrigating his land from the pond's water as it was not late Ram Vishal's property, but a public property. During the hearing of that application, it was found that Gaya Prasad had been irrigating his land from pond's water for the last 30 years. It is further averred that Rampal sold suit land including the pond to appellant no.2 Arvind Kumar on 24/08/1984 for a total consideration of Rs 25,000/- and the physical possession of the entire suit land was also given to appellant no.2 by Rampal and ever since the entire suit land has been in the possession of appellants.