The principle of adverse possession was not applicable as the defendants had not claimed title by adverse possession and failed to prove their possession over the disputed land.

1. This appeal is directed against the judgment of affirmance passed in Title Appeal no. 39 of 1992 by Vth Additional District Judge, Bhagalpur.

2. The defendants 1st set are the appellants. Plaintiffs-respondents filed a suit bearing Title Suit no. 78 of 1976 for declaration that they have got valid right, title over the land described in Schedule I of the plaint and that the survey entry in the name of defendants is wrong.

3. The case of the plaintiffs is that they are members of the joint Hindu family governed by Mitakshra School of Hindu law and plaintiff no. 1 Garbhu Mandal later transposed as defendant no. 28 was the Karta of the family. According to them two sons of Bulaki Mandal, namely, Madari Mandal and Sardari Mandal were only recorded in the record of rights prepared during cadestral survey in the year 1907. According to them the said two sons were born from first wife of Bulaki Mandal whereas Plaintiffs are sons and grandsons from his second wife.

4. The case of the defendants 1st set is that Khedo Mandal, Most. Chulho and Madari and Sardari (both sons of Bulaki Mandal) were recorded tenant in the cadestral survey in the year 1907 and the disputed land measuring 3.5 acres was sold by them to Mouzi Singh on 28.10.1910. Mouzi Singh were four brothers and land was purchased in the name of Mouzi Singh on behalf of all the four brothers. The defendants are the sons of one of the brothers Ritlal and they claim that by virtue of partition between the brothers of Mouzi Singh the land in question came in their share and they have been in possession. It appears that Garbhu Mandal, plaintiff no. 1, the elder son of Bulaki Singh filed a compromise petition against the interest of other claimants and thus he and his son (plaintiff no. 2) were transposed as defendant nos. 28 and 29.

5. The trial court, on consideration, has found that the defendant has not been able to prove his possession over the entire 6 bighas of land purchased by him. The defendant has himself admitted the possession of the plaintiffs over the portion of the land in question i.e. of plot no. 1155. Further it has been found that the defendants have failed to prove the ouster of the plaintiffs and that the plaintiffs have proved their possession and title over the suit land and so the survey entry in the name of defendant is wrong. Accordingly, the suit has been decreed in favour of the plaintiffs and affirmed in appeal preferred by defendants-appellants.

6. Learned counsel for the appellants has contended that the courts below have committed error in not considering that the appellants had been in possession over the suit land since the purchase by Mouzi Singh on 28.10.1910 till the suit was filed in the year 1976 i.e. for almost 66 years and thus the defendants perfected the title by adverse possession.

7. I am unable to accept the submission of learned counsel for the appellants. The defendants-appellants never claimed title by adverse possession as is evident from the fact that there was no such issue framed nor any such point was raised by them in appeal. However, I have already noticed above that the trial court on consideration of evidence has come to the conclusion that the defendant has failed to prove his possession over the suit land and so the survey entry in the name of defendant is wrong. The said finding has also been affirmed by the learned appellate court in which no infirmity has been pointed out. As such this Court does not find any substance in the said submission of the learned counsel for the appellants.

8. It is contended by the learned counsel for the appellants that in view of statement of plaintiff no. 1 in the compromise petition and joint written statement of original plaintiff no. 1 transposed as defendant no. 28 of that Khatian has wrongly been prepared in the name of defendant nos. 1 and 2 and that they had no right, title over the suit land, both the courts below have wrongly decreed the suit in favour of plaintiff nos