SURESH PATEL Vs. CHHITIYA

JUDGEMENT

(1.) HEARD on the question of admission.

(2.) THE appellants have filed this appeal being aggrieved by the judgment and decree dated 25.10.2013 passed by the Additional District Judge, Amarpatan in Civil Appeal No. 66 -A/2010 whereby the judgment and decree dated 09.08.2010 passed in Civil Suit No. 23 -A/2009 by the Second Civil Judge, Class -II Amarpatan has been affirmed and confirmed and the suit filed by the respondents -plaintiffs for declaration of title and possession has been decreed.

(3.) HAVING heard learned counsel for the appellants, it is observed that both the Courts below have taken into consideration the fact that the alleged will of the year 1985 was for the first time produced before the Revenue authority in the year 2005 and on that basis for the first time the appellants' name were mutated in the revenue record by an ex parte order dated 23.09.2005. The Court below has recorded a finding that the plaintiffs who are the daughter of the deceased came to know about the aforesaid act of the appellants after the death of their mother in the year 2005 on 25.12.2008 and thereafter they filed a suit. By recording the aforesaid fact, the Courts below have held that the suit filed by the plaintiffs/respondents is not barred by limitation. The Courts below have also recorded a concurrent finding to the effect that after the death of original owner his widow being alone permitted the appellants to cultivate the land and therefore the possession of the appellants was not open, hostile and adverse to that of mother of the respondents but was in the nature of permissive possession. The Court below has also observed that the defence of the adverse possession which is necessary to be pleaded and proved in specific terms in the written -statement was not taken -up by the appellants in the suit but was sought to be taken -up by filing an application for amendment in the first appeal. The First Appellate Court has on that count rejected the claim of the adverse possession in the absence of any pleading and proof in the written -statement and before the Trial Court.