VINEET KOTHARI, J. - (1.) THIS Second Appeal filed under Section 100 of the Civil Procedure Code by the defendant-appellants is directed against the judgment passed by the Fist Appellate Court dated 4.12.1981 dismissing the appeal of the defendant appellant Tara Chand and another and upholding the judgment and decree passed by the learned Munsif and Judicial Magistrate, Kishangarh Bas, Distt. Alwar dated 5.7.1977 decreeing the suit of plaintiff-respondent Paltu Nath.
(2.) THE plaintiff had filed a civil suit before the trial Court seeking a decree for perpetual injunction against the defendant-respondents restraining the defendants from dis-possessing the plaintiffs from the suit property in question. The plaintiffs claimed in the plaint that they were in permissive possession of the said property for over twenty years, whereas the defendants claimed that the said property was purchased by them from the owner of the said property by a registered sale deed on 29.1.1973 from Shri Purushottam Dass Bharagava and the said residential property is situated in Village Kot Kasim, Tehsil, Kishangarh Bas, Distt. Alwar. The plaintiffs also claimed that the said permissive possession of the portion of the suit property was obtained from the owner Shri Purushottam Das Bhargava is marked by green ink. He had acquired right by adverse possession as he and his family had lived in the said suit premises for over twenty years without any disturbance and, therefore, the defendants could not dispossess them from the suit property in question. The present appeal had in fact been decided by this Court by the learned Single Judge on 8.1.1990 whereby the said second appeal of the defendant was allowed and the impugned judgment and decree passed by the trial Court in favour of the plaintiffs were set-aside. The plaintiffs took the matter to the Hon'ble Supreme Court vide Civil Appeal No. 14607/1996 (arising out of SLP(C) 11077/96) which appears to have been allowed upon hearing the learned counsel for the appellants only and the judgment of this Court was set-aside and the matter was remanded back for fresh decision by the Hon'ble Supreme Court observing that the plea of adverse possession was taken by the plaintiffs in paragraph 3 of the plaint whereas the High Court in pars No. 13 of its judgment given earlier had observed that "Neither the plea of adverse possession was taken specifically in the pleadings nor any issue was framed in this regard by the trial Court and nor any evidence was tendered on the record by the plaintiff in support of the said contentions and in the absence of which Courts below have gravely erred in recording the findings that the plaintiff was the owner of the property in dispute by adverse possession in face of clear admission by him that the suit property belongs to one Purushottam Das Bharagava from whom the appellant purchased the said property by a registered sale-deed dated 28.1.1973 which has been duly proved on the record and on the basis of which a valid title had passed on to the appellants". This is how this second appeal has again been heard by this Court and is being disposed of by this judgment.
(3.) MR . Ajay Gupta, the learned counsel for the appellants drew my attention to para 3 of the plaint which translated into English reads as under :- "The plaintiff is in possession of the suit property ABCDEFG and H in question since the time of his ancestors without any disturbance or hindrance in an open manner and is using the said property as an owner for the last more than twenty years." The said suit was filed by the plaintiffs on 7.2.1973 in the Court of learned Munsiff and Judicial Magistrate, Kishangarh Bas, Alwar.;