A.N Varma J. - (1.) THIS is the defendants' second appeal arising out of concurrent findings recorded by the Courts below decreeing the suit filed by the plaintiffs respondents for injunction restraining the defendants from interfering with the plaintiffs' possession over the disputed land as well as from damaging the constructions and trees standing thereon. During the pendency of the suit, the defendants appellants were alleged to have trespassed over a portion of the disputed land whereupon the plaintiffs got the plaint amended by adding the relief for possession.
(2.) SHORTLY stated, the plaint case was that the disputed land over which stood a house was owned by one Sheo Daras, who sold the same to Usman Ali, the grandfather of the plaintiffs. Usman Ali entered into possession over the property sold to him and started using the same as well as the land appurtenant to the house for tethering animals etc. After the death of Usman Ali, the plaintiffs' father Mohd. Alam and after his death plaintiffs have been continuing in possession as owners of the properties. In the year 1956, the house collapsed in floods and since then, the plaintiffs have been using the land underneath the collapsed house and the land appurtenant thereto which are marked by letters Aa, Ba, Sa, Da, Ya and Va in the sketch map attached to the plaint for tethering their animals. They have also constructed their Mandavi, Nand and Charani. The defendants are, however, without any right, title or interest over the disputed land threatening to dispossess the plaintiffs therefrom. Indeed during the pendency of the suit, they have also forcibly occupied a part of the land in suit. Hence the suit. The suit was contested by the defendants who claimed that the land in suit originally belonged to one Ram Dhan, who died about 40 years ago leaving behind his daughters, who, however, never came into possession over the land in suit. The defendants' father has been in possession over the disputed land ever since the death of Ram Dhan and has been using the same for various purposes as their sahan. They have, thus, acquired title by adverse possession. On the pleadings of the parties various issues were framed by the trial court. On a consideration of the evidence on record, the trial court found that the plaintiffs, and before them their predecessor, were continuing in possession over the disputed land as owners thereof, their title flowing from the sale deed executed in favour of Usman Ali. It rejected the case of the defendants that they have been in possession over the disputed land since the death of Ram Dhan for more than 40 years as false. The further finding is that the defendant have illegally trespassed over a part of the land after the institution of the suit. On these findings, the suit was decreed.
(3.) THESE findings have been affirmed in the appeal. The lower appellate court has after a very careful and exhaustive consideration of the oral and documentary evidence on the record recorded a categorical finding that the plaintiffs have proved both their title and possession over the disputed land. The other finding recorded by the appellate court is that the defendants' plea that they have been continuing in possession over the disputed land for over 40 years is demonstrably false and is negatived by their own evidence. They have on the contrary illegally trespassed over a part of the disputed land during the pendency of the suit and hence they are liable to be dispossessed therefrom. The claim of the appellants that they have prescribed their title by adverse possession has also been rejected by the appellate court on the finding that their possession was of recent origin, that is, after the institution of the suit. Sri Ranjit Saxena, learned counsel for the appellants submitted that the findings recorded by the appellate court are unsustainable in law inasmuch as the lower appellate court was wrong in presuming that after the purchase of the disputed property Usman Ali must have come into possession over the same. Such a finding, it was urged, is not based on any evidence but on conjectures and surmises.;