- (1.) C. A. Rahim, J. This appeal has been preferred against the judgment and decree of Civil Judge, Gorakhpur, dated 10-10- 1985 in Civil Appeal No. 439 of 1983. By that judgment he allowed the appeal filed by the plaintiff and decreed the suit with cost. The defendant was directed to remove the constructions ABCD situated in Khasra No. 985 in Mohalla Basharatpur, Tahsil Rasulpur, Pargana Handi, Tahsil Sadar, District Gorakhpur and to deliver the possession to the plaintiff.
(2.) THE plaintiff's case, in brief, is that the plaintiff is bhumidhar and owner of the plot in Khasra Nos. 985 and 986 in Mauja Basharatpur within Tahsil and District Gorakhpur. He was a Government servant and had to remain outside Gorakhpur in connection with the said service. He retired in December 1980. In June 1979 when he was posted at Barabanki he received anin formation that the defendant had been car rying construction in Khasra No. 985 illegally. On receiving the said information he went to Gorakhpur and moved an applica tion before the Gorakhpur Development Authority to demolish the said construc tion. Information to police was also given but without any affect. THE defendant stated that the said construction is in Khasra No. 1198 which he acquired from Gaon Sabha but according to the plaintiff the said state ment was wrong and it was being done in plot No. 985 and not on 1198. The defendant contested the suit by filing a written statement where it is alleged that the construction of the defendant was done by his mother 40 years ago, which he repaired about 17- 18years ago and he there after changed the thatched roof in the year 1981. It was also stated by the defendant that the said construction was done on agricul tural land in plot No. 1198 and not in 985, as alleged by the plaintiff, but when the map was prepared by the Amin the defendant made an amendment of the written state ment and added paragraph No. 20-A, which runs thus: "that if on the basis of incorrect entries in Government records the construction in dispute found to be situate in plot No. 985, then too, the defendant's construction which is 40 years old, acquired adverse possession over the ownership rights from the time of his ancestors. Since 40 years the plaintiff was not in possession of the disputed land. " On the pleadings of both the parties 12 issues were framed. Out of them issues No. 1,2 and 12 are relevant for the purposes of determining the adverse possession. (1) Whether the plaintiff is bhumidhar of plot No. 985. If so its effect? (2) Whether the construction in suit lies in Plot No. 985. If so its effect? (12) Whether the defendant has got title by adverse possession? The learned Munsif held issues Nos. 1,2 and 12 in favour of the defendant. Accord ingly he dismissed the Suit with costs. Being aggrieved by the said judgment and order dated 31-10-1983 the plaintiff filed an ap peal which was decided in the aforesaid manner.
(3.) BEFORE this Court the appeal was heard on 4. 5. 1993. The brother Judge who heard the appeal remanded the case back to the court below to decide the question of adverse possession, as according to him the court below did not framed issue on record a clear finding as to when possession of the defendant began and whether there was ad verse possession. The matter went to the Supreme Court. The Hon'ble Judges by order dated 10-11-1994 remanded back the matter to this Court to consider it once again if it would still choose to consider remanding the case to the lower appellate court when it was found that an issue with regard to adverse possession was framed. It appears that issue No. 12 has been framed by the lower court to the effect whether the defendant has become owner of the suit land by way of adverse possession. So it is now required to be decided whether the plea of adverse possession taken by the defendant alternatively with the claim for title on the disputed land, was proved.;