Judgment

DWIVEDI, J.:- It the defendant s appeal. The plaintiff Digamber Jain Praband Karini Sabha, Panagar, instituted a suit against the defendant Shikharchand Jain for recovery of possession over certain agricultural lands situate in mauza Imlai, Smt. Rajrani, fifth defendant (now dead) was the proprietor of a Patti in mauza Imalai. The land in dispute fell in that Patti. It was her sir. The area of the land is 12.86 acres. Smt. Rajrani became malik maqbooza of the land on the abolition of the proprietary rights in the State in 1951.On January 18, 1954, she gifted the land by a registered gift deed in favour of the plaintiff (which is registered under the Madhya Pradesh Public Trust Act, 1951). Ram Das and Ballu, the third and fourth defendants were cultivating the land. The plaintiff instituted a suit against them on July 15, 1954. In the said suit they pleaded that Shikharchand had sub-let the land to them. The suit was decreed. Their appeals were dismissed on May 4, 1957, Shikharchand and also instituted a suit on November 3, 1955 against the plaintiff and Smt. Rajrani for a declaration that the gift made by her would be void after her death. We are told that the suit has been dismissed in default. As the aforesaid defendants are disputing the plaintiff s title, the suit was instituted. All the defendants except. Smt. Rajrani filed a joint written statement. They denied the plaintiff s title to the land. Smt. Rajrani held a limited estate in the land and the gift deed would be ineffective after her death. She could not gift the entire property. Shikharchand has been in possession over the land since 1937 as an owner thereof and has acquired rights of an owner by adverse possession for more than 12 years. Smt. Rajrani filed a separate written statement. She has supported the case of the plaintiff. The trial court framed a number of issues. Of them, only two now survive for consideration. They are issues Nos. 1 and 4. Issue No. 1 is:

"1 (a) Whether the defendant No. 5 (Smt Rajrani) was the owner of the suit fields till 18-1-1954?

(b) whether she was also in possession of the suit fields till 18-1-1954?

4. (a) whether defendant No. 1 (Shikharchand) has been in exclusive, continuous and uninterrupted possession of the suit fields since 1937 adversely to the defendant No. 5 and the plaintiff?

(b) whether, therefore, the defendant No. 1 has perfected his title by adverse possession?

2. Issue No. 1 was answered in favour of the plaintiff. Issue No. 4 was answered against Shikharchand. The trial Court held that he was in possession for and on behalf of Smt. Rajrani and not in his own right. The trial court granted a decree for possession to the plaintiff.

3. Defendants Nos. 1 to 4 went in appeal. The first appellant court allowed the appeal and set aside the decree of the trial court and dismissed the suit. The plaintiff then filed a second appeal in the High Court of Madhya Pradesh. The High Court has reversed the decree of the first appellate court and restored that of the trial court. Hence this appeal by Shikharchand.

4. The first appellate court has held that Shikharchand was in possession over the disputed land since 1937 and has become the owner thereof by adverse possession before Smt. Rajrani transferred the land to the plaintiff. Sri Tarkunde, counsel for Shikharchnd, says that it is a finding of fact and that accordingly the High Court could not interfere with it in second appeal. It appear that the High Court was aware that it was interfering with a finding of fact in a second appeal. So the High Court has explained.

"Defendants ( to 4) clearly failed to establish by positive evidence the adverse possession of (Shikharchand) for more than twelve years at any point of time so as to rebut the statutory presumption of possession arising in favour of the appellant and its predecessor-in-title Smt. Rajrani. Therefore, with due respect to the learned appellate Judge, I might say that the question has been absolutely misconceived