NANGA Vs. MANGAL

JUDGEMENT

(1.) THIS is an appeal by the defendants Nanga, Jiwan and Kalu against the appellate judgment and decree of the Civil Judge, Khetri dated the 25th January, 1950. The plaintiffs who are respondents before me, filed a suit for the recovery of Rs. 20/- alleging that a standing tree belonging jointly to the parties in which the plaintiffs had l/4th share had been sold by the defendants and the whole of its price had been appropriated by them, The plaintiffs, therefore, claimed their l/4th share i. e. Rs. 20/- out of the alleged amount of Rs. 80/ -. The defendants admitted having sold the tree but pleaded that it had been sold only for Rs. 30/- and not for Rs. 80/- as alleged in the plaint. They further pleaded that for thirty or thirty five years after the death of Padma, they had been in adverse possession of the land over which the tree stood and, therefore, the plaintiffs had no right to claim any share out of the price for which the tree was sold. The learned Munsif Kotputli who tried the case found that the defendants had been in adverse possession of the property over which the tree stood for more than twelve years and consequently dismissed the suit. The plaintiffs went in appeal but the learned Civil Judge, Khetri disagreed with the learned Munsif and held that the land over which the tree stood was the joint property of the parties and the defendants had not shown that they had adverse possession of it. The plaintiffs were, therefore, entitled to claim 1/4th share from the defendants, but holding that the tree was sold for Rs. 30/- only, he awarded a decree for Rs. 7/8/- to the plaintiffs against the defendants. Against this decree, the defendants have come in appeal.

(2.) IT was argued by Mr. C. L. Agarwal on behalf of the appellants that the defendants had been in exclusive possession of the property in suit for more than twelve years and had not paid any profits to the plaintiffs for a period much longer than twelve years. They had, therefore, acquired adverse possession over the property and the plaintiffs had, therefore, no right to claim anything out of the price of the tree sold. IT was further argued that the plaintiffs were not in possession of the property in suit and, therefore, without bringing a suit for possession, they could not bring a suit for mesne profits.