LAXMAN Vs. BAGDIBAI

JUDGEMENT

(1.) APPELLANT is the defendant. He has suffered decree at the instance of plaintiff to the extent of declaration of his 1/2 share in the suit land and for injunction. As a consequence and even independently, the counter claim set up by the defendant about his title being conferred by adverse possession was dismissed. This was upheld in first appeal filed by the defendant when his appeal was dismissed by the impugned judgment/decree now under appeal. It is against this concurrent dismissal, the defendant has come up in second appeal under section 100 of CP. Code contending that it involves substantial question of law within the meaning of section 100 ibid. The impugned judgment/decree is dated 10.1.2003 passed by the First Additional District Judge, Ratlam, in C.A. No. 23-A/2001 which in turn arises out of judgment/decree dated 29.8.2001 passed by Second Civil Judge Class I, Ratlam, in C.S. No. 33-A/98.

(2.) HEARD Shri Yashpal Rathor, L/c for the Appellant.

(3.) IT was a suit between the members of two branches of one family whose names were jointly recorded in Revenue Records. It is on the basis of this jointness, the plaintiff had claimed 1/2 share in the suit property as against the defendant. The counter claim based on adverse possession was held not proved for two reasons. One for want of evidence and secondly for want of no hostility against co-owner. In other words, an element of hostile assertion being not present as against the co-owners, the counter claim was rejected. As a consequence, the suit to the extent of 1/2 share of plaintiff stood decreed against the defendants. It is against this concurrent decree the defendant has come up in second appeal.