The burden of proof in adverse possession cases lies with the party claiming adverse possession, and specific positive intention to dispossess is required. The concept of adverse possession is a blended question of fact and law, and the title holder must renounce the title for adverse possession to operate.

JUDGMENT :

Though this matter is listed in admission, with consent of learned counsel on both sides, the matter is taken up for final hearing.

2. The captioned second appeal is filed by the unsuccessful defendant Nos.1 and 2 who have questioned the concurrent findings of the Courts below wherein the plaintiffs suit for partition is decreed negativing the contention of defendants that they have perfected their title by way of adverse possession.

3. For the sake of brevity, the parties are referred to as per their rank before the trial Court.

4. The family tree of the parties is as under:

5. The plaintiffs represent the branch of Imamsab who is the younger son of propositus Lalsab while defendants represent the branch of Davalsab who was the eldest son of propositus Lalsab. The present suit is filed by contending that they are entitled for half share in the suit land bearing Sy.No.473 measuring 36 acres 15 guntas. The plaintiffs claimed that in 1977, there was some dispute between the children of second son Gaibusab in respect of land bearing Sy.Nos.44, 45, 46 and 43. The second son Gaibusab filed partition suit in O.S.No.27/1977 seeking relief of partition and separate possession. The said suit was decreed. The plaintiffs claimed that therefore the second branch of second son Gaibusab have taken their legitimate share pursuant to decree passed in O.S.No.27/1977. Therefore, the plaintiffs contended that insofar as suit land is concerned, there is no partition between the branch of Davalsab and the plaintiffs branch who are tracing their right under Imamsab. Plaintiffs claim that they along with defendants are tenants in common and the suit land was originally owned by propositus Lalsab and therefore, plaintiffs claim that they have got half share in the suit schedule properties.

6. On receipt of summons, the present defendants contested the proceedings and stoutly denied the entire averments made in the plaint. The defendants contended that plaintiffs by not asserting right in earlier suit bearing O.S.No.27/1977 have given up their claim and the same amounts to waiver and acquiescence. The defendant No.1 further contended that he has perfected his title over the suit land by way of adverse possession. The defendant No.1 also contended that suit is barred by limitation.

7. The plaintiffs and defendants to substantiate their respective claim have let in oral and documentary evidence.

8. The trial Court having examined the material on record found that there was litigation between the family way back in 1930. In the said suit, the grand son of Lalsab and son of Gaibusab initiated a suit in O.S.No.711/1930 and in the said suit, Sy.No.125 which in the present suit renumbered as Sy.No.473 was allotted to Modindab thereby creating limited right in his favour. In the said compromise, it was agreed between the parties that the present suit land would revert back to the defendants there in after the death of Modinsab. Therefore, the trial Court held that the suit land reverted back to the plaintiffs and defendants' family and hence, defendants cannot assert exclusive right over the suit land. The trial Court has also examined the stand taken by the defendants herein in earlier suit bearing O.S.No.27/1977. The defendants in the said suit also set up plea of adverse possession and also contended that suit is barred by limitation. The trial Court referring to Exs.D-6 and D-7 which are judgment and decree passed in O.S.No.27/1977 found that in the said suit, plea of adverse possession and limitation were answered in the negative.

9. The contention of defendants that the present plaintiffs who were arrayed as defendant Nos.6 and 7 in O.S.No.27/1977 failed to lay a claim over the suit land and therefore, they are debarred from asserting any right and share in the present suit land was also negatived by the trial Court in the present case. The trial Court also found that the defence set up by the defendants in O.S.No.27/1977 asserting adverse possession