SHRIPAD SHIVRAM SARDESHPANDE Vs. SHIVRAM BHIKAJI PATKI

JUDGEMENT

(1.) The plaintiffs, who are khots of the village, sued in the first place for a declaration that they were the owners of some land, the subject-matter of the suit, and for an injunction against the defendants to prevent them from obstructing the plaintiffs enjoyment.

(2.) Alternatively, they sued for possession. Although there is a reference in the plaint at page 22 of our record to the following effect-"Plaintiffs vahivat is going on, without obstruction continuously from very old days and therefore also plaintiffs ownership on the suit land is established completely (i.e., plaintiffs have become owners by adverse possession)," the point does not seem to have been pressed in the original Court, and no issue was raised, the ones framed being the ordinary ones, viz., (1) Whether the plaintiffs prove their title? and (2) Whether the plaintiffs prove their possession within twelve years next before suit?

(3.) The original Court found in the plaintiffs favour that they had title and that they had been in possession within twelve years of the suit, and gave them a decree accordingly. On appeal to the District Court, this decree was reversed on the ground that the defendants had proved an entry of 1885 in the khoti records of the village showing them to be occupancy tenants, a fact incompatible with the plaintiffs contention that this land was their khoti khasgi land. The decree was consequently reversed, and the suit dismissed. A second appeal was made to this Court, and it was decided by Baker J., who upheld the view taken by the learned District Judge, and dismissed the appeal. He, however, granted leave under the Letters Patent, apparently on the ground that he had overlooked the plea as to title by adverse possession set up by the plaintiffs in their plaint.