RAMSINGH Vs. ROOPSINGH

JUDGEMENT

(1.) The defendant appellant seeks setting aside of a decree for possession in respect of an agricultural land in a suit based on title though declaration as to title was not prayed for.

(2.) The suit property, an agricultural land bearing survey No. 106 area 15. 32 acres situated at village Shivna of Tahsil Bhikangaon admittedly belongs to the plaintiff-respondent. According to the plaintiff the defendant illegally dispossessed the plaintiff at about 7-8 years prior to the institution of the suit and did not restore the possession to the plaintiff in spite of demand by notice served on 7-6-66. The defendant in his written statement took the plea that in the year1955 the plaintiff sold the land to the defendant and his brother Manohar for a consideration of Rs. 611/- and delivered possession. A sale-letter (on a piece of plain paper) was executed by the plaintiff which document has been lost because at about two years before the institution of the suit Manohar, who was in the custody of the document, expired unexpectedly on account of snakebite and since then the document was not traceable. The defendant submitted that he having been in possession of the property since 1955 adversely and in denial of the plaintiff's title, his title has been perfected by prescription also.

(3.) The suit was decreed by the trial Court on 30-7-1971. The decree was challenged in appeal. The District Court in Civil Appeal No. 46-A of 76 by order dt. 27-6-74 remanded the case back to the trial court because it was of the opinion that despite a plea as to adverse possession having been raised in the written statement an issue covering the plea was not framed which vitiated the trial. On remand such an issue was framed. On behalf of the defendants an additional witness, Ram Singh by name, was examined. No other evidence was adduced. On hearing the parties, by judgment and decree dt. 15-3-76 the suit was once again decreed. The trial Court held that the possesion of the defendant being under an agreement for sale, could not be treated to be adverse. The lower appellate Court made a reappreciation of all evidence available on record. It up held the dismissal of the suit but not for the reasons given by the trial court. It held that the loss of the sale letter of the year 1955 was neither alleged nor proved and there being no prayer seeking leave to adduce secondary evidence, nor a permission to do so, the evidence of such sale could not have been looked into. The court also held that the plaintiff in his statement dt.23-7-71 had stated that he had leased the land to the defendant on adhbatai (division of crops or profits) for a period of two years in 1957-58 which fact found support from the khasra entry (Ex. D. 1) for the samvat year 2014-15, and hence the possession of the defendant could not be treated as adverse. The appellate Court believed the statement of Anopsingh (P. W. 2) who was village Patel and who had deposed that the defendant had been in possession of the land for 15-16 years. On this evidence appellate Court arrived at a conclusion that possession of the defendant commenced in Samvat Year 2014-15 where after he had been continuously in possession but the possession had originated in permission which could not be adverse to the plaintiff.