- (1.) THE facts which have given rise to this appeal against the appellate order of the learned Additional Commissioner, Jaipur, dated 26-2-54 may be stated in brief as below: - Sheonarain and Deendayal plaintiff-respondents filed a suit in the court of Munsiff Behror in which they alleged that Khubram defendant-appellant had on 2-1-40 made an encroachment on one bigha and 3 biswas on their field No. 370 ABD included in his guawra a portion of the said land by erecting a pacca danda. It was prayed that their possession on the encroached land be restored. THE appellant denied the encroachment and pleaded that the land in question had been in his possession for the last 60 years that the said danda was constructed about 16-17 years back in place of the katcha one which existed there in the past. It was also pleaded that the suit was time barred. On being examined, the counsel for the defendant also stated that his client had acquired adverse possession over this land. THE case remained pending for sometime in the court of the Munsiff who subsequently on the coming into operation of therevenuecourts (Procedure andjurisdiction)Act transferred it to the court of the S. D. O. Behror for disposal THE S. D. O. framed necessary issues out of which issuesno. 2 was "is the defendant in possession of the disputed land for 60 years and thus acquired ownership by adverse possession and the plaintiff's suit is time barred?"the trial court decided this issue against the plaintiff and dismissed the suit on the ground that the defendants had been in continuous possession of this land and acquired ownership by adverse possession against the plaintiff respondents. THE plaintiff went up in appeal before the Additional Commissioner, Jaipur THE learned Additional Commissioner after discussing the evidence and the law on the subject, reversed the decree of the trial court and decreed the suit in favour of the plaintiff. Hence this second appeal by the defendants.
(2.) THE main contention of the learned counsel for the respondents is that the trial court as well as the appellate court were not competent to decide the issue of adverse possession as in substance, it involved a question of proprietary title which should have been referred to a civil court for a decision in accordance with the provisions of sec. 36 of the Revenue Courts (Procedure and Jurisdiction) Act. In support of this contention of relied on 29 Indian cases, p. 565,1915wherein it was observed that if a defendant pleaded that he was in proprietary and adverse possession of the land, the issue should have been tried by the District Judge Reliance was also placed on Revenue Decisions 1939, page 128 in which it was also observed that where the written statement raised a clear claim of proprietary right than the revenue courts ought to from a issue and send it to a civil court. A similar observation was also made in Indian cases 1912, vol. 16, page 120. THE contention of the learned counsel for the respondent is that the defendants had not taken this plea of adverse possession specifically in their written statement and had also not been able to prove by clear and unequivocal evidence that their possession was hostile to the plaintiff who was the real owner of this land. In support of this contention, he relied on A. I. R. 1935, Privy Council page 53. It was also urged that the lower-appellate court had after a careful scrutiny of the evidence given its finding on the fact viz. that the defendants had failed to prove adverse possession and this finding can not be reagi-tated in second appeal as held in 1941 R. D. , page 345. We have carefully examined the evidence of the parties and the various rulings referred to above on the point in issue. A perusal of the written statement shows that the plea of adverse possession was not definitely and specifically taken by the defendants. All that was stated in the written statement was that they had raised a pacca wall on this land about l6-17 years before in the presence and with the consent of the plaintiff and his co-sharers and that they had been in occupation of the land in question for the last 60yrs. as its owner. Evidently the defendants did not say that the said land belonged to the plaintiff but had been occupied by them and had been in their occupation adversely and that they had thus acquired ownership on it by virtue of adverse possession. As laid down in A. I R. 1937 Sind, page 76 "mere user of the property cannot be taken as a definite assertion of proprietary right and there must be some definite quality in the possession before it can be called adverse. " There cannot be adverse possession if the person claiming did not know that he was occupying some body else's land that he must have the intention of using the property adversely against the ownership and that to make the user adverse it must be exclusive, open and notorious. " The learned Additional Commissioner rightly observed that there was no evidence on record to shows that the possession of the defendants over the land in dispute was in the nature of an adverse possession. We are also of the same view and do not find sufficient material on the record to justify an interference in this finding of fact. The plea of adverse possession taken by the appellant was simply an after thought, and it was intended solely to oust the jurisdiction of the revenue courts and it cannot be deemed to have raised a question of proprietary right with in the meaning of sec. 36 of the Revenue Courts (Procedure and Jurisdiction) Act. As regards the other point viz. whether or not the suit was barred by limitation it was urged by the learned counsel for the appellant, that the plaintiffs failed to prove that they were in possession of the said land within 12 years prior to the institution of the suit. We don't find much force in this argument. As already observed above, the burden to prove adverse possession lay on the defendant and not on the plaintiff, whose title as an owner carried with it the legal possession, which must be deemed to subsist unless and untill there is open and hostile assertion of title accompanied by exclusive possession of an effective nature to the knowledge of the actual owner. The evidence on record shows that this Danda was erected some time in 1940 when the present dispute arose, and the suit was instituted on 30-8 43 in the court of the Munsiff. It, therefore, follows that the suit was instituted within the prescribed period of twelve years for the eviction of the appellants. In view of these facts we hold that the suit was not heard by limitation. The result is that the decree given by the lower appellate court is confirmed and the appeal is dismissed. .;