JAGDIP NARAIN SINGH Vs. BILLAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that the plaintiff had acquired a title by adverse possession to shares in four villages specified in the plaint, and that the defendants second party were not entitled to bring that property to sale in execution of a mortgage-decree against the defendants first party.

(2.) The defendants, first party, were recorded in the revenue papers as owners of a 3/4ths share in the property in suit, but according to the plaintiff they never were in possession and he alone was in exclusive enjoyment of the property for over 12 years. Defendant No. 1, one of the recorded co-sharers, executed a mortgage of the property on the 12th April 1899 in favour of the defendants second party. The latter sued on this mortgage and obtained a decree for sale on the 14th of December 1905., The present suit was instituted on the 3rd July 1906.

(3.) Prior to this, namely, on the 16th of February 1894, the plaintiff had instituted a suit praying for maintenance of possession and establishment of his title by adverse possession over the property. This suit was dismissed on the 18th December 1894 upon the finding that plaintiff had failed to prove adverse possession for a period of 12 years. This decision was upheld on appeal by the High Court. The present suit, it will be noted, was filed more than 12 years after the institution of the former suit. It was dismissed by both the Courts below upon the ground that the suit was barred by the rule of res judicata by reason of the decision in the former suit. This decision was reversed by this Court on appeal, the Court holding that the plaintiffs might have acquired a title by adverse possession since the 16th February 1894 and that the doctrine of res judicata did not bar it. This Court in its order of remand framed two issues for determination, namely: (1) Whether the plaintiff has been in possession of the land since the 16th of February 1894, and if so for what period? (2) If the plaintiff has been in possession for any time, what was the nature of that possession?