MAN SINGH Vs. TELU

JUDGEMENT

(1.) THIS order will dispose of Regular Second Appeals Nos. 151 to 153 of 1983 and 202 to 205 of 1983. Initially eight suits were filed by different plaintiffs against different defendants. But as the main facts were identical in all the suits; by agreement of parties, the suits were consolidated and evidence was recorded in one suit, namely, suit No. 255 of 1963 Rai Singh and Ors. v. Sardara and Ors. All the suits were disposed of by one judgment by the trial Court as well as by the lower appellate Court on appeal. So far as suit No. 248 is concerned, no second appeal has been preferred. That suit was dismissed on the short ground that it was barred by the rule of res judicata in view of the previous decision inter partes. Exhibits D. 1 and D. 2. The present second appeals are in the remaining seven suits.

(2.) THE facts leading to these suits may now be stated. The plaintiffs claim that they are co-sharers with the defendants in the land in dispute in each of the suits and that during me consolidation proceedings in the year 1959-60, when they asserted their rights to the land in dispute, their title to it was denied by the defendants. Accordingly they were driven to the present suits for joint possession of the land. The defendants in each of these suits set up the plea that the plaintiffs' ancestors had abandoned the land more than about 140 years ago, that is, in the year 1826. The suits were filed in the middle of 1961. The defendants also pleaded that they had become owners by adverse possession. On the pleadings of the parties, the following issues were framed :-

(3.) MR. Kedar Nath Tewari, learned counsel for the appellants, has strenuously contended that the Courts below have erred in law in holding that the defendants have succeeded in proving that the plaintiffs or their ancestors abandoned the land in dispute. The contention of the learned counsel is that the onus to prove abandonment is on the defendants and that there is no presumption in favour of abandonment. He further lays great stress on the fact that the plaintiffs and defendants were co-sharers when the plaintiffs or their ancestors left the village; that the defendants did not, by any overt act, assert their hostile title to the land and that mere long absence from the land would not prove abandonment. Mr. Dalip Chand Gupta, learned counsel for the respondents, on the other hand contends that the question whether there is abandonment or not is a question of fact and the concurrent decisions of the Courts below on that question would be final in second appeal and would not be open to attack. The learned counsel further contends that, on the facts and circumstances proved in this case, abandonment has been amply proved. These are the respective contentions which fall for determination in the present appeal