- (1.) Heard Sri Pankaj Agarwal, Advocate holding brief on behalf of Sri M.K. Gupta, learned counsel for the appellants and Sri Arvind Srivastava, Advocate for respondents.
(2.) The following three issues have been raised by Sri Pankaj Agarwal, Advocate, on behalf of the appellants: (I) The plaintiffs specifically pleaded adverse possession over both the properties, i.e., Chabutara and Khandahar but Lower Appellate Court in a wholly illegal manner has rejected the said plea. (II) Original Suit No. 703 of 1975 was instituted by Gopal Dharamshala Trust wherein plaintiffs-appellants claimed that they are owner and in possession thereof. The said suit was dismissed. Hence it would operate as res judicata against all the defendants and that issue once operate as res judicata against them, the courts below could not have looked into this aspect of the matter afresh but ought to have granted injunction holding plaintiffs-appellants, owner in respect of both the properties. (III) That the disputed Chabutara was a part of plot no. 109, as held by Trial Court while deciding issue No. 1, but Lower Appellate Court held plaintiffs only in possession thereof and not as owner, without reversing findings and reasons assigned by Trial Court.
(3.) Sri Arvind Srivastava, learned counsel for the respondents, on the contrary, submitted that there was no evidence placed by plaintiffs-appellants before courts below to show that Chabutara was part and parcel of plot no. 109. The Trial Court in absence of any evidence, on conjectural basis, decided issue no. 1 which has rightly been discarded and reversed by Lower Appellate Court. With respect to plea of adverse possession, he submitted that, there was no pleading satisfying the legal requirements and, therefore, plaintiffs-appellants could not have been conferred any right on the basis of doctrine of adverse possession. So far as issue of res judicata is concerned, he submitted that the suit was filed only by Trust and other defendants were not parties therein. The suit was dismissed in default. Therefore, it shall not operate as res judicata against all the defendants who were not even party therein.;