BALIRAM LATORI SINGH Vs. PREM TOTARAM

JUDGEMENT

(1.) THIS is an application under Order XLI, Rule 1 of the Code of Civil Procedure for obtaining, a review of the judgment and the decree passed in Second Appeal No. 311 of 1973 on 2-9-1987 by R. M. Rustogi, J. , who is no more in this world.

(2.) FACTS giving rise to this review petition are these. The plaintiffs/applicants filed a suit for declaration of title to agricultural land, as described in the plaint and for correction of entries in the annual village papers. According to the plaintiffs, the suit lands were khudcasht lands of their father who was Zamindar. The defendant cultivated the suit lands on Batai from Samvat 2001 to 2004 who then voluntarily gave up the possession of the suit lands in Samvat 2004. The defendant was, thus, in possession of the suit lands at the time of enforcement of the M. B. Zamindari Abolition Act, 1951. The plaintiffs contended that the defendant's name was wrongly entered as sub-tenant in the annual village papers in Samvat 2008. On 4-9-1954, the defendant had filed an application under Section 91 of the M. B. Land Revenue and Tenancy Act, 1950 before the Tahsildar for restoration of possession of the suit land on the plea that he had been dispossessed by the plaintiffs on 9-7-1954. The said application was allowed by the Revenue Courts, but was ultimately dismissed by the Additional Commissioner, Gwalior Division on 5-9-1963 in Revenue Appeal No. 462 of 1961. The plaintiffs claimed that they had acquired title to the suit lands by adverse possession being in continuous, peaceful and active possession from 1951 till the time of institution of the suit, i. e. , on 8-4-1968. The defendant resisted the suit on the ground that he had been in possession of the suit lands as sub-tenant much prior to the time of the abolition of Zamindari and had now acquired the Bhumiswami rights. The defendant also pleaded that the plaintiffs had voluntarily surrendered the possession of the suit lands to him, after the decision of his application under Section 90 of the M. B. Land Revenue and Tenancy Act of the Tahsil Court in Case No. 112/54x91.

(3.) THE trial Court decreed the suit of the plaintiffs, holding that the plaintiffs had perfected their title by adverse possession. The defendant preferred an appeal. The first appellate Court reversed the decree of the trial Court and dismissed the suit of the plaintiffs inter alia holding that the suit was barred by time; the plaintiffs had not perfected their title by adverse possession, as the period of adverse possession was only of five years, i. e. , from 1963 to 1968. Against this judgment and decree of dismissal of the suit, the, plaintiffs preferred a second appeal.