KHUBRAM Vs. SHEONARAIN

JUDGEMENT

(1.) THE facts which have given rise to this appeal against the appellate order of the learned Additional Commissioner, Jaipur, dated 26-2-54 may be stated in brief as below: - Sheonarain and Deendayal plaintiff-respondents filed a suit in the court of Munsiff Behror in which they alleged that Khubram defendant-appellant had on 2-1-40 made an encroachment on one bigha and 3 biswas on their field No. 370 ABD included in his guawra a portion of the said land by erecting a pacca danda. It was prayed that their possession on the encroached land be restored. THE appellant denied the encroachment and pleaded that the land in question had been in his possession for the last 60 years that the said danda was constructed about 16-17 years back in place of the katcha one which existed there in the past. It was also pleaded that the suit was time barred. On being examined, the counsel for the defendant also stated that his client had acquired adverse possession over this land. THE case remained pending for sometime in the court of the Munsiff who subsequently on the coming into operation of therevenuecourts (Procedure andjurisdiction)Act transferred it to the court of the S. D. O. Behror for disposal THE S. D. O. framed necessary issues out of which issuesno. 2 was "is the defendant in possession of the disputed land for 60 years and thus acquired ownership by adverse possession and the plaintiff's suit is time barred?"the trial court decided this issue against the plaintiff and dismissed the suit on the ground that the defendants had been in continuous possession of this land and acquired ownership by adverse possession against the plaintiff respondents. THE plaintiff went up in appeal before the Additional Commissioner, Jaipur THE learned Additional Commissioner after discussing the evidence and the law on the subject, reversed the decree of the trial court and decreed the suit in favour of the plaintiff. Hence this second appeal by the defendants.

(2.) THE main contention of the learned counsel for the respondents is that the trial court as well as the appellate court were not competent to decide the issue of adverse possession as in substance, it involved a question of proprietary title which should have been referred to a civil court for a decision in accordance with the provisions of sec. 36 of the Revenue Courts (Procedure and Jurisdiction) Act. In support of this contention of relied on 29 Indian cases, p. 565,1915wherein it was observed that if a defendant pleaded that he was in proprietary and adverse possession of the land, the issue should have been tried by the District Judge Reliance was also placed on Revenue Decisions 1939, page 128 in which it was also observed that where the written statement raised a clear claim of proprietary right than the revenue courts ought to from a issue and send it to a civil court. A similar observation was also made in Indian cases 1912, vol. 16, page 120. THE contention of the learned counsel for the respondent is that the defendants had not taken this plea of adverse possession specifically in their written statement and had also not been able to prove by clear and unequivocal evidence that their possession was hostile to the plaintiff who was the real owner of this land. In support of this contention, he relied on A. I. R. 1935, Privy Council page 53. It was also urged that the lower-appellate court had after a careful scrutiny of the evidence given its finding on the fact viz. that the defendants had failed to prove adverse possession and this finding can not be reagi-tated in second appeal as held in 1941 R. D. , page 345.