MOHAN BHARTI Vs. TOLAPURI

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree passed by the learned District Judge, Bikaner dated 12. 12 1974.

(2.) THE brief facts giving rise to this appeal are that the plaintiff Mohan Bharti instituted a suit against Tolapuri, Shankar Puri sons of Ladhu Puri and Keshar widow of Ladhu Puri. THE plaintiff submitted that he resides at Calcutta in connection with his business. THE house property described in para 2 of the plaint is situate at Bikaner. One Mst. Mooli widow of Sugan Singh was its owner. THE suit property was sold by her to Mst. Teeja through a registered sale-deed dated 7. 11. 29 Mst. Teeja gifted away the said property to the plaintiff through a registered gift deed dated 22. 4. 1965 and possession of the property was handed over to him and since then he is in possession of the property as owner thereof. Mst. Teeja died on 6. 12. 1965. After the death of Mst. Teeja he did the last rites and went away to Calcutta. In his absence the defendants unlawfully occupied the suit premises on 8. 1. 1966. A complaint under Section 452 IPC was also lodged against the defendants. In these circumstances the plaintiff claimed a decree for possession over the said property and he also claimed mesne profits to" the tune of Rs. 150/- upto the date of the institution of the suit at the rate of Rs. 10/- per month and futura mesne profits at the same rate till delivery of possession to him. He also claimed costs of the suit.

(3.) MR. Parmatma Sharan, learned counsel for the appellant has submitted that the learned lower appellate court has not considered the documentary evidence and he has also urged that the defendants have failed to prove the adverse possession and according to the learned counsel the defendants have not pointed out the starting point from where it could be said that the suit premises were occupied by the defendant hostile to the ownership of Mst. Teeja. As such the defendants have not been able to establish the adverse possession. Learned counsel submitted that the defendants cannot take an alternative plea that at any stage they claim the suit property by way of adverse possession and at the same time they claim the suit property on account of ownership. In this connection, learned counsel has invited my attention to S. M. Karim vs. Mst. Bibi Sakina (1), Mst. Sitabai vs. Jumo (2), and Ram Kishore Sen vs. UOI (3 ).