SUKHI Vs. CHANDRA SEN

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment and decree dated 23rd April, 1982, passed by the learned Addl, District Judge, Deeg(Bharatpur) in Civil Regular Appeal No. 31 of 1981, confirming the judgment dated 13th August, 1981, passed by the learned Munsiff and Judicial Magistrate, Deeg in Civil Suit No. 110 of 1979.

(2.) BRIEFLY stated the facts of the case are that the plaintiffs -respondents filed a suit against the defendant -appellant claiming that they had possession over the disputed land described in the site -plan and annexed with the plaint. It was submitted that the defendant -appellant had no right over the disputed land, but he made an encroachment upon the land. The plaintiff's, therefore, filed a suit for possession against the defendant on the basis of the previous possession and subsequent dispossession by the defendants. The suit was contested by the defendant on the ground that it was his ancestral property and he was enjoying the possession of the property peacefully. The learned trial Court decreed the suit vide judgment and decree dated 13th August. 1981 holding that the plaintiffs were in possession of property and were dispossessed by the defendant. Against the judgment and decree the trial Court, the defendant filed an appeal. The first appellate Court confirmed the judgment and decree of the trial Court vide its judgment and decree dated 23rd April, 1982. Aggrieved by the judgment and decree passed by the Appellate Court, this second appeal has been preferred by the defendant. At the time of admission, the following substantial questions of law were framed:

(3.) THE learned Counsel for the defendant -appellant submitted that in the absence of prayer for declaration a decree for possession could not have been granted by the trial Court. The learned Counsel also addressed his arguments on the other two questions framed by this Court, which have been referred to above. Controverting his arguments, Shri R.K. Mathur, learned Counsel for the plaintiffs -respondents, contended that the learned lower Courts after considering the entire evidence gave a finding that the property in dispute is in the line of the property of the plaintiff. It was also held by the Court that prior to this possession of the defendant, the plaintiffs were in possession of the suit property peacefully. I am of the view that the submissions made by Shri Mathur, learned Counsel for the defendant -respondent') are correct.