BHAGWAT RAI Vs. BEHARI RAI

JUDGEMENT

(1.) This appeal must fail. The plaintiffs-respondents brought the suit out of which this appeal has arisen to obtain a declaration of title to a certain land, and in the alternative, they asked for possession. The suit was decreed in part by the Court of first instance and an appeal against that decree by the defendants was dismissed. The defendants filed a second appeal. The learned single Judge before whom the appeal came decided the question of res judicata in favour of the defendants but found that the plaintiff's allegation that he had all along been in possession of the property had not been gone into. Accordingly, the learned single Judge remanded an issue in the following language: Did Chit Bahal or his representatives subsequently acquire title by adverse possession extending over 12 years in, respect of the one eighth share which was given to Padarath and Bharosa under the decree of 1868, and prior to their recently obtaining the decree for profits from the revenue Court.

(2.) The lower appellate Court answered this issue in favour of the plaintiffs and the learned single Judge dismissed the appeal of the defendants.

(3.) In this Court it has been contended that the learned single Judge, really, made out a new case for the plaintiffs. We do not think that there is any force in this argument. Title had been pleaded and that title could be based on adverse possession extending for over 12 years. So it was not a new case that the learned single Judge considered: see Vasudeva V/s. Maguni [1901] 24 Mad. 387.