NATHU LAL Vs. GULAB BAI

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree of the first appellate Court dated 22.9.2001, by which it has affirmed the judgment and decree of the trial Court dated 18.3.1997.

(2.) THE facts and circumstances giving rise to this case are that the respondnet -plaintiffs filed a suit against the appellant -defendants in the Court of the Civil Judge (Junior Division), Nathdwara for permanent injunction on the averments that they were the owners and in possession of the suit property, on which the appellant -defendants were intending to raise construction, thus, they should be restrained from raising any construction thereon. The appellant -defendants filed the written -statement denying the title of the respondent -plaintiffs and claiming their title over the land in dispute. The trial Court, on the basis of pleadings, framed large number of issues including as to whether the plaintiffs were having the title and possession over the suit property and whether the appellant -defendants wanted to encroach upon the said land. After considering the evidence led by the parties, the trial Court decided both the issues in favour of the plaintiffs holding that the respondent -plaintiffs were having the title over the suit property; but on issue No. 2, it was held that the property was of the joint possession of the plaintiffs and the defendants, thus, it was not a case of encroachment as both the parties were in possession thereof. The suit was decreed to the extent that the appellant - defendants had no right to make any construction.

(3.) MR . Kalla has agitated the sole issue that even if there was nothing for the appellants to show that they had a title or the land was ancestral but as they had been using the suit property for more than two decades, they had acquired the title by adverse possession. In fact, joint possession of both the parties over the suit property was held by the trial Court in view of the evidence led by the appellant -defendants that the suit property was an open land and it had been used by them also for a long time.