ANOKHIBAI Vs. BAGDOO

JUDGEMENT

(1.) APPELLANT -plaintiff filed a suit for declaration, possession and mesne profit on the ground that she is the widow of Pooraji, who was son of one Rama. Defendant-respondents No. 1 Bagdu and No. 2 Nathu, both are also sons of Rama. The plaintiff pleaded that the suit land was the ancestral property of Rama. The suit was decreed by the trial Court, holding therein that after the death of Pooraji, being her widow appellant-plaintiff is having 1/4 share in the suit land. The defendants-respondents claimed their independant possession over the same and pleaded that since the appellant-plaintiff has not paid the dues of loan, which was taken by the father Rama and after the death of her husband Pooraji, she went to her father's house, leaving her share in the property and since then the defendants are in exclusive possession over the property and they have perfected their title by way of adverse possession. This contention of the defendant was not found proved by the trial Court. In appeal, the learned 1st appellate Court allowed the appeal of the respondents-defendants and set aside the judgment and decree granted by the trial Court in favour of the appellant-plaintiff and dismissed the suit, against which the appellant-plaintiff has preferred this second appeal, which was admitted on the following substantial question of law: ' 'Whether on the facts and circumstances of the case, the Court below has erred in holding that the respondents had perfected their title to the suit land by adverse possession?

(2.) I have heard Shri Z.A. Khan, learned counsel for appellant and perused the record. Shri Khan vehemently opposed the judgment of the 1st appellate Court and submitted that the same is bad in law and liable to be set aside.

(3.) THE learned trial Court, after appreciating the evidence on record had recorded a finding that the possession over the joint property of the respondents was not in the nature of adverse possession, as there was no partition between the heirs of Rama and the appellant-plaintiff was not ousted from the property.