KALOO Vs. MADANLAL

JUDGEMENT

(1.) . This is plaintiffs' second appeal under Section 100, CPC. The following substantial question of law was formulated by order dated 12-12-1984 at the time of admission of this appeal :

(2.) The plaintiffs' father Devaji instituted Civil Suit No. 84-A of 1965 in the Court of Civil Judge Class-II, Khilchipur for declaration of title arid permanent injunction for restraining defendant Madanlal from interfering with his possession on Khasra Nos. 588 and 594 total area 3.484 hectares of village Mohan. He claimed to have purchased these lands from the defendant orally for Rs. 500/- in Samvat 2008. In the alternative he claimed title on the basis of adverse possession for more than 12 years. The trial Court after appreciation of the evidence adduced by both the sides held that oral sale of the lands by the defendant to the plaintiff is not proved. The plaintiff was, however, held to be in actual possession of the lands from Samvat 2011. The acquisition of title by adverse possession by the plaintiff was negatived on two grounds : (a) the possession was not "adverse". The plaintiff was paying land revenue of the land on behalf of defendant Madanlal to the Patwari acknowledging the title of the defendant. In other words the possession of the plaintiff was found to be with the consent of the defendant and it was permissive. This finding has been recorded in Para 11 of the judgment, (b) the possession of the plaintiff was not found to be for the statutory period of 12 years. It was held to be for eleven years. This finding is recorded in Para 12 of the judgment. On these findings the plaintiffs suit was dismissed by the judgment and decree dated 13-2-1968. There was no appeal by him and the judgment of the trial Court became final.

(3.) The present plaintiffs are sons of Devaji. They filed this fresh suit in the year 1978 seeking the same relief in respect of the same lands. They now claimed to be in possession of the lands for twenty years and according to them they have perfected their title by adverse possession. The defendant No. 2 has sold the lands in auction for recovery of its dues from defendant No. 1 Madanlal and these have been purchased by the defendant No. 3.