RAMKISHAN Vs. MOHANJI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for possession and mesne profits in respect of a plot of land measuring 201 -4/9 Sq. yards situated in a locality called Hathi Bhata in the city of Ajmer.

(2.) THE plaintiff's case as set out in the plaint is that he purchased 1092 sq. yeards of land from Abdul Rehman and his wife Betool Bibi by a registered sale deed dated 24 -6 -1951, marked Ex. 3. It was alleged that the defendant encroached upon the disputed portion of the land measuring 201 -4/9 sq yards, out of the land purchased by the plaintiff some time thereafter. Consequently, he filed the present suit for recovery of possession of the disputed land from the defendant Mohanji Barber and also claimed a decree Rs. 432/ - on account of mesne profits. The suit was resisted by the defendant on a number of grounds but the only ground which survives for decision was that he had become owner of the land in dispute by adverse possession. This ground found favour with both the lower courts with the result that the trial court dismissed the suit and its judgment and decree were upheld by the Additional Civil Judge, Ajmer in appeal. Hence this second appeal by the plaintiff.

(3.) ON the other hand, learned Counsel for the respondent Mohanji streneously urged that the case put up by the plaintiff in the plaint was that the land encroached upon by the defendant had taken place after the purchase, of the property by him and now it was not open to him toask for relief on the ground that even though the defendant had encroached upon the land in question prior to his purchase, that is, in the year 1948, still the adverse possession of the defendant was intterrupted by the symbolical possession of the Evacuee Prcperty Deptt. It has been also argued by him that the suit is governed by Article 142 of the Limitation Act, and not Article 144 of the Limitation Act of 1908, by which Act the pre ent suit is admittedly governed). Then his contention is that there is nothing to show that before issuing the notification declaring Abdul Rehman and Betool Bibi as, evacuee the Custodian of Evacuet Property had issued the notice as required by law and had thereby laid down foundation for proceeding under the Evacuee Property Act. It has also been seriously contended by him that the principle laid down in the Privy Council and the Supreme Court casts referred, to above has no application to the present case. Lastly his contention is that Smt. Shanti's case has not been correctly decided and this Court is not bound to follow the view taken in Shanti's case.