TAJA BIBI Vs. GH MOHD BHAT

JUDGEMENT

(1.) THIS second appeal arises out of a suit for possession based on title as well as an oral entrustment by the plaintiff to the first defendant. The court of the first instance decreed the suit. On appeal the learned Addl. District Judge at Srinagar found the oral entrustment alleged in the plaint to be false and dismissed the suit on the ground that the plaintiff had failed to establish possession of the property within twelve years before the date of the suit. The plaintiff has now come up in second appeal to this court.

(2.) THE relevant facts of the case lie within a brief compass. One Jana Bibi sold a building to the plaintiff on 19th Bhadon 2002. The sale deed alleged that actual possession of the building was delivered by the vendor to the vendee. The vendor Jana Bibi was the mother -in -law of the vendee plaintiff. The plaint alleged that in Katik 2003 the plaintiff permitted the first defendant to occupy a portion of the building on the express undertaking that he would restore possession to the plaintiff as and when he asked for it.

(3.) THE question in this second appeal is whether the view taken by the lower appellate -court is correct. I shall first deal with the finding of fact, because under S. 100 (1) (d) C. P. C. as it obtains in this State, where the decision of the first court in a suit in which the value of the subject -matter exceeds Rs. 100 has been varied or reversed by the lower appellate court, the correctness of the finding of fact can be canvassed in second appeal on the ground that the decision of the lower appellate court is against the weight of the evidence in the case.