RATAN SINGH Vs. PADAMSINGH

JUDGEMENT

(1.) This is defendant's second appeal arising out of a suit for declaration of the plaintiff's title to the suit land and for grant of permanent injunction restraining the defendants from interfering with the plaintiffs possession over the suit land. The plaintiffs' case, in brief, was that the plaintiffs and the defendants were members of a Joint Hindu family; that 54 years ago, a partition had taken place in the joint family of the plaintiffs and the defendants, as a result of which the plaintiffs came into possession of their respective portions of the suit property, which had fallen to their share and that the plaintiffs were since then in occupation of their portions of the suit property as owners. The plaintiffs further averred that as the defendants were trying to interfere with the possession of the plaintiffs over the suit land, they had instituted the suit against the defendants for declaration of their title and for grant of injunction. The suit was resisted by the defendants inter alia on the ground that no partition had taken place in the family, as alleged by the plaintiffs and that the possession of the plaintiffs over the suit land was only permissive. The trial Court held that the suit land, being 'Inam' land, could not have been partitioned, that no partition of the suit property had taken place and in this view of the matter, the trial Court dismissed the plaintiffs' suit. On appeal, the lower appellate Court held that a partition was effected as alleged, that the said partition was acted upon and that the plaintiffs had been in possession of their respective shares of the suit land on the basis of that partition for more than 50 years. The lower appellate Court, therefore, held that the plaintiffs, having been in possession of their shares of the suit property for more than 12 years to the exclusion of the defendants, had perfected their title to the suit property by adverse possession even if partition was not valid. In this view of the matter, the lower appellate Court allowed the appeal and setting aside the judgment and decree passed by the trial Court, decreed the plaintiffs' suit Hence the defendants have filed this second appeal.

(2.) During the pendency of the appeal, appellant 3, Radhibai and respondent 1 Padamsingh died and their legal representatives were not brought on record. A preliminary objection was, therefore, raised that the appeal had abated.

(3.) Shri Mehta, learned counsel for the appellants, contended that some of the legal representatives of appellant 3 Radhibai were her sons, appellants 1 Ratansingh and 2 Ramsingh, who were already on record, and hence failure to implead other legal representatives, of appellant 3 Radhibai would not result in abatement of the appeal. It was further contended that failure to bring on record the legal representatives of deceased-respondent 1 would not result in the abatement of the appeal as a whole. The learned counsel for the appellant further contended that there was no evidence to prove that the plaintiffs were in possession of the suit land to the exclusion of the defendants. It was urged that there was no ouster of the defendants and hence, the lower appellate Court had erred in holding that the plaintiffs had perfected their title by adverse possession. In reply, the learned counsel for the respondents contended that a valid partition between the parties had taken place and that the plaintiffs had been in exclusive possession of their share of the suit property since the date of partition.