GULAB BAI Vs. MANGU

JUDGEMENT

(1.) This is plaintiff's second appeal arising out of a suit for declaration of the plaintiff's title to a parcel of agricultural land situated at village Jhadwasa Khurd, Tehsil and District Ratlam, and for its possession. The plaintiffs case, in brief, was that the plaintiff was 'Bhumiswami' of the suit land; that the plaintiff being a widow had let out that suit land to one Dharma; but the defendants, who are the legal representatives of deceased Dharma, were denying the title of the plaintiff and refused to deliver possession of the suit land to the plaintiff. Hence, on 6-9-1965, the plaintiff filed the present suit for declaration of her title to the suit land and for its possession. The suit was resisted by the defendants inter alia on the ground that the suit land belonged to Dharma, who had mortgaged it with the plaintiff and that after redemption, the defendants had become entitled to the suit land. The trial Court found that the title to the suit land vested in the plaintiff but the plaintiff failed to establish that the suit land was let out to Dharma, as alleged by the plaintiff. The trial Court, therefore, dismissed the plaintiffs suit. On appeal by the plaintiff, the lower appellate Court granted leave to the defendants to amend their written statement and contend that they had acquired title to the suit land by adverse possession. The lower appellate Court, therefore, allowed the appeal and directed the trial Court to frame an additional issue and decide the suit afresh. When the matter came back to the trial Court, the trial Court after consideration of the further evidence adduced by the parties, found that the defendants had failed to prove their adverse possession for more than 12 years and in this view of the matter, the trial Court decreed the plaintiffs suit. On appeal, the lower appellate Court held that the suit land was mortgaged by deceased Dharma with the plaintiff and that as the defendants were in adverse possession of the suit land for more than 12 years, the suit was barred by limitation. The lower appellate Court, therefore, allowed the appeal and dismissed the plaintiff's suit Hence, the plaintiff has filed this second appeal.

(2.) Shri Garg, learned counsel for the appellant, contended that the lower appellate Court erred in holding that Dharma was proved to be the owner of the suit land or that he had mortgaged the suit land with the plaintiff. It was further contended that the lower appellate Court had erred in holding that the defendants had proved adverse possession for more than 12 years and that the suit was barred by limitation.

(3.) Having heard learned counsel for the parties, I have come to the conclusion that this appeal deserves to be allowed. The first question that arise for consideration is whether the finding of the lower appellate Court that the suit land was mortgaged by deceased Dharma with the plaintiff, is based on the evidence on record. It is proved by Khatauni Ex.P-1 and Settlement Patta Ex.P5 that the plaintiff is the recorded 'Bhumiswami' of the suit land. There is not an iota of evidence to show that deceased Dharma was ever recorded as a 'Bhumiswami' of the suit land. There is no material on record to show that Dharma had acquired the rights of 'Bhumiswami' in the suit land. The lower appellate Court has referred to the agreement Ex. D-1 but in that agreement, there is no reference to the suit land. Learned counsel for the defendant-respondents was unable to point out any evidence on record for holding that the suit land belonged to Dharma and that he had mortgaged it with the plaintiff. Under the circumstances, the finding arrived at by the lower appellate Court in that behalf cannot be sustained in law.