MOOLCHAND Vs. DHANNI

JUDGEMENT

(1.) THIS second appeal arises out of a suit for possession of a shop, situated in Dhan Mandi in the town of Phalodi.

(2.) THE case of the plaintiffs was that they were owners of the shop in dispute. As the tenant Chandan Mal denied the title of the plaintiffs and claimed that he was a tenant of Shrimati Dhanni, they filed a suit for ejectment against him which was dismissed on the ground that the relationship of landlord and tenant was not proved between the parties. An appeal filed by them met the same fate and in second appeal this Court observed that in the absence of the relationship of landlord and tenant between the parties, the plaintiffs could seek a remedy by means of a separate suit to establish their title, if they thought that they had a title to the property in dispute. THE present suit for possession was, therefore, filed by the plaintiffs on May 16, 1960 against Chandan Mal and Snot. Dhanni Bai.

(3.) HOWEVER, learned counsel for the plaintiff - appellants relied before me upon the third plea raised by them, viz. the plaintiffs became the owners of the suit property by adverse possession. The aforesaid plea was taken before the first appellate court as well but the same was not allowed to be raised on the ground that no such plea was advanced by the plaintiffs in their plead-ings. According to the learned District Judge, allowing such a plea of adverse possession to be raised at the appellate stage would amount to entertaining a new case and if the plaintiffs were permitted to set up such new case, the same was likely to prejudice the defendants. It was also observed that adverse possession must be Droved by clear and unequivocal evidence and must be shown to be hostile, continuous and open.