- (1.) THIS second appeal, preferred under Section 100 of the Code of Civil Proce dure, 1908, is directed against the judg ment and decree dated 0/-0/-1978, passed by I Additional District Judge, Nainital in Civil Appeal No. 19 of 1978, whereby the judgment and decree dated 23-124977, passed by Munsif, Kahsipur, in Original Suit No. 160 of 1971, dis missing the suit, is set aside and the ap peal is decreed for possession and mesne profits.
(2.) HEARD learned counsel for the parties and perused the papers on record. Brief facts, as per the plaint case,' are that the plaintiffs Girish Chandra Sharma and Smt. Laxmi Devi (since de ceased) were owners and landlords of the property in question situated at Mohalla Khalsa, Kashipur. Defendant Surendra Nath is the son-in-law of de fendant Kalawati, and defendant Krishna who is daughter of aforesaid defendant Surendra Nath. Defendant No. 1 was the tenant in the property described in Schedule 'kha and 'ga'. Plaintiffs have pleaded that this property was purchased by them, in auction, as the same was mortgaged by original owner Ram Charan (in favour of one Bal Mukund), who filed suit for foreclos ure. The said suit was decreed and the property was auctioned in the year 1933. The rate of rent was Rs. I/- per month on which the defendants were enjoying the property as lessees. How ever, they stopped to pay rent after 31st of August, 1961. (In respect of property of Schedule 'kha', the defendants were evicted after the suit of the plaintiffs was decreed. However, it is pleaded that their possession continued in property, shown in Schedule 'ga' over which they encroached upon in February 1963 ). The defendant/respondent Kalawati who was the original tenant started denying title of the plaintiffs. Hence, after serving the notice suit was instituted. It is pleaded by the contesting defendant Kalawati that the plaintiffs are not the owners of the property in suit, nor are they landlords. It is alleged by her that she has inherited the property from her uncle Bihari Lal (Fufa) and aunt Smt. Sukhia (Fufi ). In paragraph 16 of the written statement, it was fur ther pleaded that since she (contesting defendant Kalawati) is in possession of the property in question for more than 50 years, as such, she has matured the titled by virtue of adverse possession. Other defendants did not contest the suit.
(3.) THE trial court on the basis of the pleadings of the parties, framed follow ing issues : 1. Whether the plaintiffs acquired title over the disputed property through the sale certificate dated 23- 10-1933? 2. Whether the defendant No. 1 has been in unlawful possession over the property detailed in Schedule 'ga' of the plaint? 3. Whether disputed property de tailed in Schedule 'kha' was let out to the defendant No. 1 by the mother of the plaintiff No. 1? 4. Whether defendant No. 1 is owner of the property in suitt? 5. Is the plea of defendant No. 1 in respect of her alleged ownership is barred by principle of resjudicata? Is the suit within time?;