KAILASH CHANDRA MOHANTO Vs. RAJKISHORE MOHANTO

JUDGEMENT

(1.) DEFENDANTS 1 to 9 are the appellants. The suit out of which this appeal arises was filed by the plaintiffs for declaration of their title to plot No. 94 in Khata No. 22 or alternatively to plot No. 99 appertaining to the same khata and for recovery of possession.

(2.) THE plaintiffs' case is this: Suit plots Nos. 94 and 99 belonged to the plaintiffs and defendant No. 9. Defendant No. 9 filed a title suit being title suit No. 49/76 of 1949 against the plaintiffs for partition of lands including suit plots Nos. 94 and 99. In the final decree passed on compromise between the parties in the said partition suit, plot No. 94 was allotted to the share of defendant No. 9 and plot No. 99 was allotted to the share of the plaintiffs. After the allotment both parties possessed the lands which fell to their respective shares. It is said that subsequently there was an exchange of these plots between the parties, namely that the plaintiffs got suit plot No. 94 from defendant No. 9 in exchange for their plot No. 99. On March 20, 1956, defendant No. 9 sold away suit plot No. 94 to defendant No. 1 by a registered sale-deed Ex. B. When defendant No. 1 attempted to take possession of plot No. 94, he was resisted by the plaintiffs. Thereafter there were proceedings under Section 143, Criminal Procedure Code which ended in favour of defendant no. 1 who got delivery of possession of plot No. 94. The order by which defendant No. 1 was given possession by the Magistrate was passed on October 14, 1957. It is said that the plaintiffs were dispossessed in november 4, 1957. Thereafter on January 16, 1959 the plaintiffs filed this suit for declaration of their title and recovery of pos session over plot No. 94 which the plaintiffs alleged to have got by oral exchange from defendant No. 9. In case the story of exchange is disbelieved the plaintiffs also claimed an alternative relief for declaration of title to and recovery of possession of plot No. 99 which was allotted to them by the final decree in the said partition suit. Defendants Nos. 1 to 8 are purchasers of the suit lands from defendant No. 9. In defence defendants Nos. 1 to 8 appeared; defendant No. 9 did not appear. The defence was this: Defendants nos. 1 to 8 claim their title to suit plot No. 94 by virtue of their purchase from defendant No. 9. They denied the story of exchange as alleged by the plaintiffs. As regards plaintiffs' claim to suit plot No. 99 the defence is that the defendants have been in possession for the statutory period and thus acquired title by adverse possession. It was also contended in de fence that the suit is bad for misjoinder of causes of action.

(3.) THE trial Court dismissed the plaintiffs' suit on the finding that the suit suffers from the defect of misjoinder of causes of action in that the plaintiffs were put on election to sue either for plot No. 94 or plot No. 99 and the plaintiffs having failed to elect, the suit is not maintainable; the story of exchange of the plots is not true; that the plaintiffs failed to prove possession within 12 years. The learned trial court did not deal with the question of adverse possession. The plaintiffs appealed. The findings of the trial Court on the question of exchange were not challenged before lower appellate Court. The appeal before him was argued in respect of the alternative relief claimed by the plaintiffs for declaration of title to and recovery of possession of plot No. 99 which was allotted to mem under the final decree in the said partition suit T. S. 40/76 of 1949. The appeal was thus confined to plot No. 99 alone. The learned lower appellate Court reversed the decision of the trial Court and decreed the suit of the plaintiffs on the finding that the plaintiffs proved their subsisting title and possession within 12 years and that the defendants failed to prove adverse possession as alleged. Hence this second appeal.