C.M.LODHA, J. - (1.) THIS is a plaintiff's second appeal arising out of a suit for possession and mesne profits in respect of a plot of land measuring 201 -4/9 Sq. yards situated in a locality called Hathi Bhata in the city of Ajmer.
(2.) THE plaintiff's case as set out in the plaint is that he purchased 1092 sq. yeards of land from Abdul Rehman and his wife Betool Bibi by a registered sale deed dated 24 -6 -1951, marked Ex. 3. It was alleged that the defendant encroached upon the disputed portion of the land measuring 201 -4/9 sq yards, out of the land purchased by the plaintiff some time thereafter. Consequently, he filed the present suit for recovery of possession of the disputed land from the defendant Mohanji Barber and also claimed a decree Rs. 432/ - on account of mesne profits. The suit was resisted by the defendant on a number of grounds but the only ground which survives for decision was that he had become owner of the land in dispute by adverse possession. This ground found favour with both the lower courts with the result that the trial court dismissed the suit and its judgment and decree were upheld by the Additional Civil Judge, Ajmer in appeal. Hence this second appeal by the plaintiff. Learned Counsel for the appellant has urged that the vendors Abdul Rehman and Betool Bibi had been declared evacuees and the land purchased by the plaintiff from them.described as 'Takiya' was notified in the official Gazette under the provisions of the East Punjab Evacuee (Administration of Property) Act, 1947 as applied to Ajmer. It has been further urged by him that the property belonging to Abdul Rehman and Betool Bibi was released by the Assistant Custodian of Evacuee Property, Ajmer on 17 -5 -50 (vide Order Ex. 1). It has been submitted that the period during which the land in question remained under the symbolical possession and control of the Custodian of Evacuee Property will be deemed to have interrupted the adverse possession of the defendant, and looked at from this stand point the defendant's alleged adverse possession was interrupted and did not ripen into a title so as to deprive the plaintiff of the right to recover possession of the land in question from the defendant. In support of his contention Learned Counsel relied upon Radha Krishna v. Rani Bahadur AIR 1917 PC 197 and Manikayali Rao v. Narasimhaswami : [1966]1SCR628 . Apart from these authorities Learned Counsel rested his case,and pressed that the plaintiff was entitled to a decree in view of a single Bench, judgment of this Court: S.B. Civil Second Appeal No. 538 of 1966: Smt. Shanti and Ors. v. Omprakash and Ors. decided on 22 -8 -73 where on exactly similar facts the suit was held to be within limitation.
(3.) ON the other hand, learned Counsel for the respondent Mohanji streneously urged that the case put up by the plaintiff in the plaint was that the land encroached upon by the defendant had taken place after the purchase, of the property by him and now it was not open to him toask for relief on the ground that even though the defendant had encroached upon the land in question prior to his purchase, that is, in the year 1948, still the adverse possession of the defendant was intterrupted by the symbolical possession of the Evacuee Prcperty Deptt. It has been also argued by him that the suit is governed by Article 142 of the Limitation Act, and not Article 144 of the Limitation Act of 1908, by which Act the pre ent suit is admittedly governed). Then his contention is that there is nothing to show that before issuing the notification declaring Abdul Rehman and Betool Bibi as, evacuee the Custodian of Evacuet Property had issued the notice as required by law and had thereby laid down foundation for proceeding under the Evacuee Property Act. It has also been seriously contended by him that the principle laid down in the Privy Council and the Supreme Court casts referred, to above has no application to the present case. Lastly his contention is that Smt. Shanti's case has not been correctly decided and this Court is not bound to follow the view taken in Shanti's case.;