KEHAR SINGH Vs. ISHWAR

JUDGEMENT

(1.) This is defendants' second Appeal against whom suit for declaration was dismissed by the trial Court but stands decreed in appeal.

(2.) The dispute between the parties, in the present suit, relates to land measuring 394 Kanals 2 Marlas, situate in village Naguran. According to the plaintiffs, defendants No.1 to 81 are descendants of Lachhia, that defendants of set No.2 had 1/4th Share is the land: that they got their portion separated in partition proceedings for which Mutation No.3028, dated 28th February, 1976, with respect to the land detailed in para 5 was sanctioned, that the remaining land measuring 268 Kanals 12 Marlas remained joint on which the plaintiffs and proforma defendants had 1/3rd share whereas defendants of set No.1 had 1/3rd share and Chatra, defendant, had 1/3rd share, that defendants of set No.4 had 1/3rd share. Thus, the plaintiffs alleged that they being the co-sharers in the suit land were entitled to get it partitioned. The suit was mainly contested by defendants No.1 to 12. They, in their joint written statement, pleaded that ancestors of plaintiffs had abandoned their rights in the suit land about 100 years ago, that they had gone to village Dhan Kheri and acquired land in the said village and also built houses there, that since they never resided in village Naguran, where the suit land was situated, they never cultivated the land nor paid any land revenue that the defendants remained in possession of the suit land since the year 1904 in their own right as owners. It was alleged that the defendants had become owners of the suit land by adverse possession also. Defendant No.16 Dhara Singh and defendant No.17 Bhala Ram also filed written statement to the same effect. The remaining defendants did not file any written statement.

(3.) The trial Court came to the conclusion that the plaintiffs were not in possession of the suit land as co-sharers that their ancestors had abandoned their rights in the suit land; that defendants No.1 to 12 had become owners of the suit land by adverse possession and that the suit was barred by limitation. In view of these findings, the suit was dismissed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that the defendants had failed to prove the abandonment by the plaintiffs of their rights in the suit land. It was further found that in case the defendants failed to prove the abandonment by the plaintiffs, as alleged, then the plaintiffs continued to be co-sharers in the suit land and the defendants could not claim to have become owners by adverse possession. In view of these findings, the suit was decreed. Dissatisfied with the same, the defendants have filed this Second Appeal.