GANESH Vs. KUNJILAL

JUDGEMENT

(1.) BEING aggrieved by the judgment-decree dated 29-3-90 passed by ADJ, Khurai in C. A. No. 36-A/83-43-A/89 affirming the judgment-decree dated 30-8-83 passed by the Second Civil Judge Class-II, Khurai in C. S. No. 196-A/82, plaintiff/appellants have preferred this appeal under Section 100 of the CPC.

(2.) THE appeal has been heard on the following substantial question of law: Whether the finding regarding adverse possession of defendants with respect to the suit land, is perverse ?

(3.) LATE Ganesh the original plaintiff was son of Smt. Tijiya. Vide Patta dated 1-4-1943 Khasra No. 554/27 area 2. 78 sq. ft. Khurai District Sagar was allotted to late Tijiya. Adjacent land Khasra No. 554/28 was allotted to predecessor of defendant/respondents. On portion of land shown in the plaint map by letters CGFH forming part of Khasra No. 554/27, defendant/respondents constructed their house and perfected title by adverse possession, as such late Tijiya did not initiate any proceeding against them. The area shown by letters DEFG remained in possession of late Tijiya. This portion of land (hereinafter be referred to as "the suit land") remained in occupation of late Tijiya and was used for Nistar purpose. Sometime in the month of June, July, 1979, defendant/ respondents on their wall existing on CGFH opened a door towards the suit land (DEFG) and sought permission of plaintiff/appellant for temporary use of suit land (DEFG ). On 27-9-80 defendant/respondents ultimately dispossessed plaintiff/appellants from the suit land (DEFG) and constructed a verandah on a portion of it. Since then defendant/respondents have started using the suit land as courtyard of their house existing on Khasra No. 554/28. Therefore, the original plaintiff late Ganesh instituted C. S. No. 196/82 before the Civil Judge Class-II, Khurai for restoration of possession of suit land. The suit was resisted by the defendant/respondents stating inter alia that adjoining land forming part of Khasra No. 554/28 was allotted to predecessor in title of defendant/respondents. Since the time of allotment itself predecessor in title of defendant/respondents constructed his house and the suit land shown by letters DEFG remained in exclusive possession of late Saru real brother of defendant/respondent Kunjilal. Late Tijiya never remained in possession of the suit land nor it was ever used by her and plaintiff/appellants. In fact on 27-9-80 original plaintiff late Ganesh picked up a quarrel with the defendant/respondents and inflicted injuries to one of the female members of the family of defendant/respondents. A report accordingly was lodged with the police. To create a pressure the original plaintiff late Ganesh instituted a suit stating inter alia that the defendant/respondents dispossessed him from the suit land (DEFG ). The Civil Judge in C. S. No. 196-A/02 vide judgment dated 30-8-83 held that defendant/respondents remained in exclusive possession of the suit land and it was being used as courtyard of their house existing on Khasra No. 554/28. As such, dismissed the suit for restoration of possession. Being aggrieved, defendant/appellants preferred C. A. No. 36-A/83-43-A/89 before the ADJ, Khurai. The Court below affirming the aforesaid finding of fact recorded by the Civil Judge dismissed the appeal vide impugned judgment dated 29th of March, 1990.