RADHELAL Vs. VISHWANATH

JUDGEMENT

(1.) HEARD on the question of admission.

(2.) THE brief facts of the case are that the appellant/plaintiff has filed civil suit seeking relief of declaration in respect of the land situated in Khasra No. 14, old No. 8, Patwari Halka No. 45 situated in Village Chhevlabhagirath, Tahsil Hata, Distt. Damoh admeasuring area 4.73 hectare. It was pleaded by the plaintiff that grandfather of respondent No. 1 namely Gayaprasad and father of the plaintiff namely Jamnaprasad were intimate friends and used to carry on business. In the year 1958, the said land was purchased on an auction in which they agreed that the said land would be purchased in the name of Jamnaprasad and this fact was known to Gayaprasad, Nathuram and respondent No. 1. As the aforesaid land was auctioned in the name of Gayaprasad, therefore, his name was recorded in the revenue record. Thereafter in view of the partition took place in the family of Gayaprasad, the said land was recorded in the name of respondent No. 1. It was further pleaded that in the year 1970, on the ground of adverse possession, the appellant became the owner of the said land, but in the year 1983 -84, the land was mutated in the name of respondent No. 1, however, respondent No. 1 was not in possession of the land in question. The appellant/plaintiff has stated that he was in continuous possession of the said land for the past more than 20 years, therefore, he became the owner of the said property by virtue of adverse possession. Thereafter an agreement was executed between the appellant and respondent No. 1 on 5/9/2007, however, as respondent No. 1 failed to comply with the terms and conditions of the agreement and want to dispossess the appellant/plaintiff from the disputed land, the plaintiff/appellant, therefore, filed civil suit seeking relief of declaration and permanent injunction on the ground of adverse possession.

(3.) THE trial Court, after hearing both the parties and appreciating the material available on record, has framed five issues and by judgment and decree dated 9/5/2011 dismissed the civil suit of the plaintiff. Against the said judgment and decree, the appellant/plaintiff has preferred an appeal before 2 nd Additional District Judge, Damoh who by the impugned judgment and decree has partly allowed the appeal and dismissed the appeal on the ground of adverse possession and affirmed the findings given by the Courts below of adverse possession. Being aggrieved by the said judgment and decree dated 17/7/2012 the appellant has preferred the present second appeal on the ground that the judgment passed by the first appellate Court is patently erroneous, arbitrary and mala fide. He further stated that learned Courts below have erred in holding that the appellant is not in possession of the suit property and, therefore, no decree on the basis of adverse possession can be passed in his favour.