NARESH AHIR Vs. BARHIYA

JUDGEMENT

(1.) This second appeal is against the judgment of reversal of the trial court judgment by the lower appellate court. The defendants first set of the suit are the appellants. The plaintiffs respondents had brought the suit for declaration of title and confirmation of possession in respect of the suit properties and in the alternative they also sought relief for recovery of possession.

(2.) The facts leading to the case are that the land stood recorded in the name of Kauleshwar Bind and the plaintiffs claimed title from him. According to their case the name of Kauleshwar Bind stood recorded in the cadestral survey. Kauleshwar Bind was grandfather of Ramu Bind, who was married to plaintiff No. 1 Barachia and was great grandfather of plaintiff No. 2. After the death of Ramu Bind plaintiffs came in possession of the suit land. Since they had good relation with the ex-landlord and were rendering services to him, no rent receipt was ever obtained, as they did not consider it necessary, but they continued to exercise peaceful possession over the suit property. It was in Magh 1370 fasli that the defendants first party prevented the plaintiffs from harvesting. Hence, the necessity of the suit. The defendants-appellants claimed the right over the property as Sikmidar for the last thirty to forty years and that there was commutation of Bhawali rent in their favour. It was specifically pleaded on their behalf that the plaintiffs were not connected with the recorded tenant Kauleshwar Bind and they were strangers to the suit properties. In other words in the suit itself in the trial court the plaintiffs' status of their relationship and connection with the recorded tenant was seriously disputed. The suit was dismissed on contest at the trial stage delivering judgment in favour of the defendants, but the finding with regard to the status of the plaintiffs having relationship with the recorded tenant Kauleshwar Bind was against the pleadings of the defendants' appellants and that plaintiffs were not strangers to the suit properties. But the court did not find title with the plaintiffs on the ground that the title of the plaintiffs ancestors had already extinguished by virtue of general and special law of limitation, as Kauleshwar Bind had abandoned the holding and the defendants were coming in possession thereof entering upon the land treating it as abandoned and found possession of the defendants over the same for over forty years. The plaintiffs made an appeal against the judgment and decree of the trial court and before the appellate court the respondents-appellants sought to support the judgment and decree, but at the same time-they attempted to assail the findings of the trial court stating that the plaintiffs were strangers to the suit properties having no connection whatsoever with the recorded tenant Kauleshwar Bind and as such, the plaintiffs did not derive any interest in the suit property through him. However, the defendants- respondents in the lower appellate court had not filed any cross-objection against the decree of the trial court. The appellate court while disposing of the appeal and reversing the judgment of the trial court took the following issue, as framed by the trial court for deciding the appeal:

(3.) The lower appellate court did not permit the defendant appellants to assail the same on the simple ground that they ought to have filed cross-objection against the finding of the trial court's judgment as to the relationship between the plaintiff-respondents and the recorded tenant Kauleshwar Bind In the impugned judgment, the lower appellate court had said that there was no necessity of giving any finding on the aforementioned issue and no interference was called for and the findings of the trial court were accepted and the same was disposed of accordingly.