VINOD K.SHARMA, J. - (1.) PRESENT Regular Second Appeal has been filed against the judgment and decrees passed by the learned Courts below vide which suit filed by the plaintiffs for declaration to the effect that the plaintiffs and defendant Nos. 23 & 24 are owners in possession of agricultural land measuring 30K-1M, situated in village Atta.
(2.) THE plaintiffs have claimed that they are owners in possession by way of adverse possession. Consequential relief was also prayed vide which permanent injunction was sought against defendant Nos. 1 to 22 from interfering in peaceful possession of the plaintiffs and defendant Nos. 23 and 24. In the alternative it was claimed that due to operation of judgment and decree in case Jai Parkash v. Mangu etc. decided on 9.12.1948, the plaintiffs and defendant Nos. 23 and 24 are owners in possession of 23/24th share of the above mentioned land as Jhandu and Harphool @ Phool Singh donors have died and the partition proceedings in case Chandgi etc. v. Chotto etc. in which the objections of the plaintiffs were dismissed on 10.9.1971, are illegal, void and not binding upon the plaintiffs and defendant Nos. 23 and 24. The learned trial Court dismissed the suit by holding that donors parted with the gifted property by observing that mere symbolic possession amounts to giving the possession. In view of finding recorded, issue No. 1 was decided in favour of the plaintiffs. Issue Nos. 4 and 5 were also decided in favour of plaintiffs respondents whereas issue Nos. 6 and 7 were decided in favour of the defendant-appellants. Issue No. 7 was decided against the plaintiffs by holding that the partition proceedings of property were validly taken and binding on the plaintiffs. Issue No. 8 was decided against the plaintiffs respondent. However, in appeal the learned lower appellate Court reversed the findings of the trial Court on Issue No. 7 by observing as under :- "Now the question which arises for determination is whether on the death of Jhandu, Harphul, the share which they gifted in favour of defendants, reverted back to the plaintiffs or not. There is no finding recorded by the trial Court on this aspect of the matter. Normally a report should have been called from the trial Court on this aspect but in view of the certain admitted facts in the pleadings, no report need be called. It is admitted in the written- statement that present plaintiffs are successors-in-interest of Jhandu and Harphul. Some of the plaintiffs were parties to the suit decreed by the Senior Subordinate Judge, on 9.12.1948. There was an issue in the said suit whether the land was ancestral in the hand of donor qua the plaintiffs in that suit. There is a finding recorded that the land was ancestral in the hand of the donors. There is also a finding recorded in the present suit that the possession is of the present plaintiffs. So when plaintiffs are already in possession and as per decree of the Senior Subordinate Judge dated 9.12.1948, on death of the donors, the property was to revert back to the reversioners and is also proved from that very judgment that property was ancestral qua the appellants in the hand of the donors, so due to death of these two donors, the share which they gifted will stand reverted back to the plaintiffs and defendants will only be owners of the share gifted by Giana i.e. 1/24th share in the total khewat. As the decree for partition was passed treating the defendants to be owners of 1/5th share, so the said decree will become void, because question of title raised before Assistant Collector Ist Grade will be deemed to have been wrongly decided. In view of the above, the findings of the trial court on issue No. 7, is liable to be reversed and is reversed as such and I hold that partition proceedings were not validly taken and are not binding on the plaintiffs." and accordingly decreed the suit filed by the plaintiffs respondent.
(3.) THE learned counsel appearing on behalf of the appellants at the outset has challenged the finding recorded by the learned lower appellate Court on the plea that the suit as framed was not competent as the plaintiffs were not entitled to seek a declaration of ownership on the basis of adverse possession as plea of adverse possession can only be taken as defence and that has been allowed.;