BALA RAMCHANDRA GANDBAVIE Vs. DAULU RAMA KIRATSING

JUDGEMENT

(1.) These are two appeals arising out of two suits filed by the plaintiff in respect of certain laud and a house. As regards Appeal No. 196 of 1923 which relates to the house both Courts have found that the plaintiff's title is not proved and that his possession within twelve years prior to the date of the suit is not proved. It is clear, therefore, that that appeal must fail. We confirm the decree of the lower appellate Court and dismiss the appeal with costs.

(2.) As regards the land the facts are these. Vithu made a gift of the land in 1910 by a registered document, and Vithu's daughter Radha was in possession of this property when, in January 1914, the present plaintiff filed a suit against Vithu for possession of this very land. Vithu died during the pendency of the suit, and Radha was brought on the record as the legal representative of Vithu. But before she was, brought on the record, she sold the land to defendant No. 1. In that suit Bai Radha did not appear to contest the suit as the legal representative of Vithu with the result that an ex parte decree was passed in favour of the plaintiff and against Vithu's legal representative in respect of this very land on November 30, 1915. The possession of the land was with the defendants under the alienation in their favour by Radha The plaintiff apparently sought to get possession of this land under the decree in the suit of 1914, but he was resisted by the present defendants. On the application of the defendants his effort to get possession failed. He then filed the present suit for possession of the land against the defendants.

(3.) The defendants in this suit claimed a title to this land through Bai Radha who acquired title to it under the gift made by her father in 1910. The defendants also claimed to have been in possession of this land for over twelve years in their own right adversely to the plaintiff. Both the Courts have found against the plaintiff on the allegation that this land was given to the mother and sister of the plaintiff and Vithu for maintenance. That allegation of the plaintiff must, therefore, be left out of consideration, It is found that Vithu was the owner of this land, that he made a gift of it in 1910 and that the defendants have been in possession through Bai Radha of this land. The finding of the lower appellate Court is that the plaintiff has not proved his possession within twelve years prior to the date of the suit, and even if the lower Courts were not satisfied that the defendants had been in possession for over twelve years adversely to the plaintiff, on this finding it is clear that the plaintiff cannot succeed.