CHHAGAN LAL Vs. DHANNALAL

JUDGEMENT

(1.) THIS is a second appeal filed under section 100 of CP. Code by the defendant against the judgment and decree, dated 20.3.1985, passed by learned Vllth Additional District Judge, Indore, in C.A. No. 58 -A of 1984, which in turn arises out of Civil Suit No. 34 -A of 1977, decided by Vlth Civil Judge, Class II, Indore, on 26.2.1983. It was admitted for final hearing on following substantial question of law -

(2.) HEARD Shri P.V. Bhagwat, learned counsel for the appellants. None for the respondent, despite service.

(3.) IT is the case of plaintiff that he is in possession of this 0.95 acres which admittedly belonging to defendant for more than 12 years to the knowledge of defendant and hence, acquired Bhumiswami rights by adverse possession. It is on this basis i.e. adverse possession, the plaintiff sought a declaration of ownership in relation to 0.95 acres (part of 216/2) qua its true owner defendant and further sought an injunction against the defendant that they should not create any obstruction in the enjoyment of plaintiff's right over the suit land (i.e. 0.95 of Khasra No. 216/2). The defence was that of denial. According to defendants they are admittedly the real owners of the Khasra No. 216/2 whose total area is 3.62 acres of which 0.95 i.e. suit land is a part. It was alleged that it is for the first time on 27.6.1976 when the defendants got the demarcation of their land done, it was revealed that 0.95 acres of land is found to be in possession of the plaintiff. It is on this basis, the defendant averred that they are entitled to get back their possession from the plaintiff on the basis of their title. Accordingly, while denying the case of plaintiff in relation to adverse possession, the defendants filed a counter claim against the plaintiff and prayed for possession. It is this issue which was probed into. Parties led evidence. The trial Court dismissed the suit and decreed the counter claim preferred by the defendants. However, in an appeal filed by the plaintiff, the first appellate Court decreed plaintiff's suit and dismissed counter claim. In other words, the first appellate Court accepted the plea of adverse possession set up by the plaintiff and decreed plaintiffs suit. As a consequence, counter claim filed by the defendants had to be dismissed giving rise to filing of this second appeal by the defendants.