SHEKH MUBIN Vs. KHURSHID

JUDGEMENT

(1.) THIS appeal is directed by the plaintiff/appellant under section 100 of the CPC being aggrieved by the Judgment and decree dated 1.5.09 passed in Civil Appeal No.33-A/08 by District Judge Betul, affirming the judgement and decree dated 30.9.08 passed in Civil Suit No. 16-A/08 by the IV Civil Judge, Class II, Betul dismissing the suit for declaration and perpetual injunction fild by the appellant.

(2.) THE facts giving rise to this appeal in short are that appellant herein fild the suit against the respondents for declaration and perpetual injunction with respect to the agricultural land described in the plaint and recorded in the name of Late Khatoon Bi widow of Sheikh Qasim, the mother and predecessor-title of the respondent No. 1 to 3. The same is situated in village Neempani. As per further averments of the plaint, Sheikh Ibrahim, the father of the appellant had some other land recorded in his name. On his demise on 6.1.98, appellant along with his sister, mother and brother inherited such land. The land of Khatoon Bi also remained in possession of the appellant. Khatoon Bi died on 25.12.05. As per further case of the appellant, the disputed land remained in his possession, within the knowledge of Khatoon Bi, continuously for the period between 23.9.87 to 23.9.99 and during that period, no proceeding for taking the possession was initiated by said Khatoon Bi against him. In such premises the possession was initiated by said Khatoon Bi against him. In such premises, he perfected his right of Bhumi Swami on such land by adverse possession. It is also stated that if Khatoon Bi had any right over such land then due to his uninterrupted possession over the land for more than 12 years, such right of Khatoon Bi has also been extinguished. In such permises, the appellant alleging that respondents No. 1 to 3 had tried to dispossess him from such land on 24.2.06, has filed the suit.

(3.) AFTER casting the issues and recording the evidence, on appreciation for the same, it was held by the trial Court that the appellant is neither in possession of the disputed land nor had perfected the right of BhumiSwami by adverse possession. The execution proceedings filed by Khatoon Bi, the predecessor of the respondent, was held to be within limitation. The disputed property was not found to be the ancestral property of the plaintiff. Apart this, the suit is also held to be barred by the principle of resjudicata. Such judgment and decree of the trial Court was challenged before the first appellate Court. After hearing, on consideration, by affirming the judgment of the trial Court, the appeal was also dismissed, on which, the appellant/plaintiff has come forward to this Court with this appeal.