MUNGESHWAR SAHOO, J.:–The defendants-appellants-appellants have filed this Second Appeal against the judgment and decree dated 23.02.1999 passed by the learned 6th Additional District Judge, Bhagalpur in Title Appeal No.96 of 1997 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 26.07.1997 passed by the learned 1st Additional Munsif, Bhagalpur in Title Suit No.174 of 1993.

2. The plaintiffs-respondents filed the aforesaid suit praying for declaration of title on the suit property and for making correction in the khatiyan in which the name of appellant no.2 i.e. Chikitsa Mahavidyalaya has been entered. A relief was also claimed for permanent injunction restraining the State of Bihar from interfering the possession of the plaintiffs over the suit property. The plaintiffs claimed the aforesaid relief alleging that the plaintiff is residing in the suit property after constructing a house since last 60 years i.e. from his fathers, as such, the plaintiffs have acquired title by adverse possession. The encroachment case was filed against the plaintiffs wherein after hearing the plaintiffs, the concerned authorities declared the plaintiffs as encroacher. Subsequently, the Circle Officer stayed the operation of the order because suit was filed by the plaintiffs before the court for the declaration of title on the basis of adverse possession.

3. The State of Bihar and Chikitsa Mahavidyalaya, the appellant filed contesting written statement alleging that the suit property has been acquired by the State of Bihar for construction of the medical college. The plaintiff’s encroachment was removed but subsequently, he again encroached the land and residing there. All other allegations made by the plaintiffs were denied by the State of Bihar.

4. The trial court decreed the plaintiff’s suit recording the finding that the defendants failed to prove that the suit property was acquired by the State of Bihar for the purpose of construction of medical college. The trial court also recorded clear finding that the plaintiff is residing in the suit property since many years as such, has acquired title by adverse possession. Accordingly, the plaintiff’s suit was decreed. The defendants filed title appeal before the Lower Appellate Court. The Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal.

5. At the time of admission on 16.07.2002, the following 3 substantial questions of law were formulated:–

“(A) Whether the courts-below are legally justified in decreeing the suit in favour of the plaintiff-respondent only on the ground of adverse possession, when the land in question under encroachment was removed by the order of the proper authority on 17.03.1993, and also that the land was acquired under Land Acquisition Act for the establishment of Medical College?

(B) Whether it was within the jurisdiction of the courts-below to examine as to whether or not the land encroachment case was initiated and decided in accordance with law?

(C) Whether the suit was barred under the provisions of Land Encroachment Act?

6. The learned S.C.22 appearing on behalf of the appellants submitted that both the courts below wrongly recorded the finding that the defendants have acquired title by adverse possession without there being any pleading and evidence to the said effect and that the courts below wrongly assumed that the property was never acquired by the State of Bihar for medical college because in the khatiyan itself, the name of the appellant no.2 is recorded. According to the learned counsel, for acquiring title by adverse possession, the plaintiff is required to prove the ingredients for constituting the adverse possession but in the present case, the plaintiff has only pleaded in the plaint that he is continuing in possession for last 60 years i.e. since the time of his father. In support of his contention, the learned counsel relied upon AIR 2009 Supreme Court 103(Hemaji Waghaji

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