A. K. MATHUR, J. - (1.) THIS second appeal is directed against the judgment and decree passed by the learned District Judge, Bikaner dated 12. 12 1974.
(2.) THE brief facts giving rise to this appeal are that the plaintiff Mohan Bharti instituted a suit against Tolapuri, Shankar Puri sons of Ladhu Puri and Keshar widow of Ladhu Puri. THE plaintiff submitted that he resides at Calcutta in connection with his business. THE house property described in para 2 of the plaint is situate at Bikaner. One Mst. Mooli widow of Sugan Singh was its owner. THE suit property was sold by her to Mst. Teeja through a registered sale-deed dated 7. 11. 29 Mst. Teeja gifted away the said property to the plaintiff through a registered gift deed dated 22. 4. 1965 and possession of the property was handed over to him and since then he is in possession of the property as owner thereof. Mst. Teeja died on 6. 12. 1965. After the death of Mst. Teeja he did the last rites and went away to Calcutta. In his absence the defendants unlawfully occupied the suit premises on 8. 1. 1966. A complaint under Section 452 IPC was also lodged against the defendants. In these circumstances the plaintiff claimed a decree for possession over the said property and he also claimed mesne profits to" the tune of Rs. 150/- upto the date of the institution of the suit at the rate of Rs. 10/- per month and futura mesne profits at the same rate till delivery of possession to him. He also claimed costs of the suit. The defendants contested the suit and filed a joint written - statement and deny the allegations of the plaintiff. It was denied that the plaintiff was ever put into possession of the property. The defendants were in possession of the property. It was also submitted that the so-called complaint has been dismissed, in the additional pleas it was submitted that Mst. Teeja was the sister of Ladhu Puri and she was dispossessed from the disputed property more than 15 years prior to her death. The title of Mst. Teeja was also denied and it is alleged that it stood extinguished prior to 20. 9. 1965 on account of adverse possession of defendant No. 3 over the disputed property. As such Mst. Teeja has no right to gift nor she gifted away the property. It is alleged that it was Ladhu Puri, the husband of the defendant No. 3 or it was his money and the ornaments of defendant No. 3 which were, used in purchase of the house property. The title of Mst. Teeja was only benami. It is alleged that relations between Mst. Teeja and defendants were not happy. There used to be quarrel and malice since long and on account of that she was driven out from the house and the present suit filed in them action which is collusive and ineffective. On the basis of the pleadings of the parties, 7 issues were framed. Learned trial court found the fact of sale of the house by Mst. Mooli to Mst. Teeja and so-called gift in favour of the plaintiff. But he found that on account of adverse possession the Mst. Teeja's right came to an end and as such the plaintiff in whose favour the so-called gift deed was executed cannot be said to be effective. Thus, the suit was dismissed by the learned Munsiff. Aggrieved against this, the plaintiff filed an appeal before the learned appellate court and the learned appellate court after exhaustively dealing with the matter and reexamining the whole evidence affirmed the finding of the trial court and held that right of Mst. Teeja in the suit property stood extinguished on account of adverse possession. Aggrieved against this, the appellant has preferred this second appeal. I have gone through the judgments of the trial court as well as the learned District Judge and have also gone through the evidence on record.
(3.) MR. Parmatma Sharan, learned counsel for the appellant has submitted that the learned lower appellate court has not considered the documentary evidence and he has also urged that the defendants have failed to prove the adverse possession and according to the learned counsel the defendants have not pointed out the starting point from where it could be said that the suit premises were occupied by the defendant hostile to the ownership of Mst. Teeja. As such the defendants have not been able to establish the adverse possession. Learned counsel submitted that the defendants cannot take an alternative plea that at any stage they claim the suit property by way of adverse possession and at the same time they claim the suit property on account of ownership. In this connection, learned counsel has invited my attention to S. M. Karim vs. Mst. Bibi Sakina (1), Mst. Sitabai vs. Jumo (2), and Ram Kishore Sen vs. UOI (3 ). Mr. Purohit, learned counsel for the respondents has seriously coo-tested the matter and submitted that since there is a concurrent finding of fact recorded by both the courts below regarding plea of adverse possession and this court sitting as a court of appeal shall not interfere with the concurrent finding of fact. In this connection, learned counsel has invited my attention to Nathu Lal vs. Durga Prasad (4), Shri Sinha Ramanuja Joer Alias Sri Vanamamalal Ramanuja Joer Swamigal vs. Sri Ranga Ramanuja Joer alias Emberumanar Joer (5), The State of U. P. v. Ram Chandra Trivedi (6) and Dudh Nath Pandey (dead by L. R. 's) vs. Suresh Chandra Bhattasali (dead by L. R. 's) (7 ). Learned counsel also submitted that both the learned courts below have properly appreciated the testimony and there is no reason to disturb that finding. I have considered the rival contentions of both the learned counsel. It is true that there is a concurrent finding of fact recorded by both the courts below that the defendants have been able to establish the adverse possession over the suit premises. It is a fact that this house was purchased in the name of Mst. Teeja and that fact has been established and same has been confirmed by both the courts below. But the question is that if Mst. Teeja, who is said to be the real owner of the house has been thrown out by the defendants and they are in hostile possession for more than 12 years and in that case the defendants acquired the right by way of adverse possession. Both the courts below have found from the statements of the witnesses who have been produced from both the sides that the defendants have succeeded in establishing that Mst. Teeja was thrown out more than 12 years before the institution of the suit and Mst. Kesar widow of Ladhu Puri was occupying this premises hostile to the ownership of Mst. Teeja. Secondly, it has also been established that this was too well known to the public at large and Mst. Teeja did not taken any steps for recovery of possession of this premises for more than 12 years. Learned-counsel for the appellant has submitted that no starting point has been shown that from what date the possession was hostile. From the testimony of Mst. Keshar as well as the other witnesses produced on behalf of the defendants who were residing in the neighbouring area of this house, it has been shown that this house was in possession of Mst. Keshar for more than 12 years and it has further come in the evidence that Mst. Teeja twice and thrice tried to get into possession and she was thrown out. It may be a case of helpless widow who has been thrown out of his property, but in face of the legal position and the evidence on the record however strong may be the moral sympathy with her still no decree can be passed in favour of the successor of Mst. Teeja. Mst. Teeja as mentioned above was the real sister of Ladhu Puri and resided with them for some time, but after the death of Ladhu Puri the relations appear to have been strained and she has been driven out by Mst. Keshar. Since then Mst. Teeja remained out of possession and she could not get back into possession. From the evidence on record, it is apparent that Mst. Teeja was not in possession of this house for more than 12 years and the defendants were in adverse possession of this house for more than 12 years hostile to the possession of Mst. Teeja. Therefore, by virtue of adverse possession which has been matured in more than 12 years the right of Mst. Teeja has extinguished. ;