SHAIK SATTAR DEWAN Vs. SHAIK SAJED ALI

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession of some land on establishment of the plaintiffs title thereto. The suit was resisted by defendants Nos. 1 and 2 on the allegation that the plaintiffs had neither any title to the land nor were ever in possession thereof. The Court of first instance found the evidence of title unsatisfactory on both sides but holding that the plaintiffs were in possession of the land gave them a decree. On appeal the learned Subordinate Judge agreed with the trial Court on the question of the plaintiffs title but holding that the plaintiffs had not been in possession of the land in dispute allowed the appeal and dismissed the suit. The plaintiffs have come up to this Court on second appeal.

(2.) It was contended on behalf of the appellants that the finding of the lower Appellate Court on the question of title, based as it is on a wrong interpretation of a certain document, a kobala, Ex. I, is unsustainable and it was argued that the lower Appellate Court was not, therefore, justified in law in dismissing the plaintiffs suit. I do not think this argument is well founded. Even if it be held that the plaintiffs had a title to the land it was not sufficient for the purpose of their obtaining a decree. The suit was instituted on the allegation of possession and subsequent dispossession and that being so, it was incumbent on the plaintiffs to establish that they had been in possession within 12 years before the institution of the suit. A proof of an anterior title could not relieve the plaintiffs from showing their possession at sometime within the statutory period of 12 years. The plaintiffs wanted to show that they had been in possession of the land and had been dispossessed there from shortly before the institution of the suit. But this story was dis-believed by the lower Appellate Court and the lower Appellate Court held that the plaintiffs had not been in possession of the land in suit. In view, therefore, of the allegation on which the suit had been instituted and also of the finding on the question of possession arrived at by the lower Appellate Court I do not think that the decree of the learned Subordinate Judge can be reasonably disturbed.

(3.) There was another small point raised before me and that was in connection with an alleged defect of parties. In view of my aforesaid observations the question of defect of parties does not arise.