JAGAN NATH Vs. PUSHKAR RAJ

JUDGEMENT

(1.) Plaintiff Jagan Nath, who has remained unsuccessful before both the Courts below, has come up in this Court in Regular Second Appeal. The facts, under which he was constrained to bring a suit for possession with regard to half share of plot sold to him by Kasturi Lal, need to be briefly noticed.

(2.) Admittedly, one Kasturi Lal was owner of the plot, situated in Khanauri, tehsil Sunam. He sold half of the aforesaid plot to plaintiff Jagan Nath vide sale deed dated January 20, 1971. The remaining half as sold by the owner to Parkash Chand on the same day. The share that was sold to the plaintiff vide sale deed dated January 20, 1971, was resold by Kasturi Lal stealthily to Pushkar Raj vide sale deed dated January 29, 1971. Immediately on purchase of the plot aforesaid, the vendee raised construction on the plot by spending an amount of Rs. 1.50 lac. The plaintiff brought about his suit for possession and mandatory injunction on February 27, 1982, which after some length of trial was dismissed for non-prosecution vide Ex. PX on August 28, 1985. The plaintiff brought about his present suit, which is second in series, about the same cause of action on December 5, 1985. The suit was contested by the defendants on various grounds, inclusive of that they were in possession of the plot for a period of more than 12 years, after raising construction on the same and, therefore, the suit was barred by limitation as provided under section 65 of Limitation Act. The trial Court framed various issues on the controversy and also issue No. 6, which runs thus:

(3.) On conclusion of the trial, whereas all the relevant issues were determined by the trial Court in favour of the plaintiff, issue No. 6 with regard to limitation was decided against him and his suit was dismissed. The judgment and decree dated July 24, 1987, passed by the trial, Court was challenged by the plaintiff in appeal, but on the aforesaid plea of limitation as raised by the defendants, the same did not find any favour with the Additional District Judge, Sangrur. As has been noticed above, the only point, which has gone against the plaintiff, is that his suit is beyond the period of limitation, prescribed under the Limitation Act and obviously, therefore, the contention of the learned counsel for the appellant centres around the issue of limitation. It has been contended by the Counsel appearing for the appellant that there is no specific issue with regard to adverse possession and that being so, the findings of the Courts below that the defendants have become owners of the property by way of adverse possession cannot be sustained. He also contends that the plaintiff had filed a suit in 1982 as well and counting the period from the said date, the suit was within limitation as by that time, the defendants had not acquired the ownership by way of adverse possession. Mr. Hemant Kumar, appearing for the respondents, however, seriously refutes the contentions of the learned counsel and contends, that the earlier suit, which was dismissed in default, would not save the limitation as also that non-framing on specific issue regarding adverse possession has not prejudiced the case of the plaintiff for admittedly the parties were alive to the controversy involved in the suit and had led evidence.