JUDGMENT :

1. Proceedings of this matter have been taken-up through video conferencing.

2. This second appeal preferred by the plaintiff/appellants herein (LRs of the plaintiff) was admitted for hearing on 29-11-2013 by formulating the following substantial questions of law :-

“1. Whether the first appellate Court was justified in reversing the finding of the trial Court on the basis of the defendants perfecting their right by adverse possession?

2. Whether the case of the plaintiffs was established before the trial Court through the power of attorney holder, was proper or not?”

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.)

3. Plaintiff Radheshyam Pathak filed suit through power of attorney Vijay Prakash Pathak, for recovery of possession based on title stating inter alia that the suit house was purchased by the plaintiff on 27-11-1976 from Shesh Narayan Lal Agrawal and obtained possession of the suit land and immediately thereafter, it was given on license to Mahesh Gond – father of defendants No.1 & 2. The defendants are sons and widow of Mahesh Gond. In the year 1990, license was terminated and the suit house was sought to be vacated by serving notice dated 3-9- 2007 which has not been vacated leading to filing of suit for decree for recovery of possession of the suit house. The defendants filed written statement stating inter alia that they are in possession for long time uninterruptedly and without interference and Shesh Narayan Agrawal has no right to alienate the suit property in favour of the plaintiff, they are not licensee and the plaintiff’s suit is barred by limitation.

4. The trial Court after appreciating oral and documentary evidence available on record decreed the suit in favour of the plaintiff which was appealed by the defendants before the first appellate Court and the first appellate Court reversed the decree of the trial Court and dismissed the suit which has been called in question by the plaintiff in this second appeal in which substantial questions of law have been formulated and which have been set-out in the opening paragraph of this judgment for the sake of completeness.

5. Mr. Arvind Shrivastava, learned counsel appearing for the appellants herein / LRs of the plaintiff, would submit as under :-

1. The trial Court and the first appellate Court, both, have concurrently held the plaintiff to be the title holder of the suit house, therefore, since the defendants have not pleaded and established their plea of adverse possession, decree for possession passed by the trial Court could not have been interfered and reversed by the first appellate Court.

2. In view of Article 65 of the Limitation Act, 1963 once title is proved by the plaintiff in a suit for possession based on title, it is for the defendant who has to plead and prove the plea of adverse possession and suit cannot be dismissed holding it barred by limitation, unless the defendant pleads and establishes the plea of adverse possession.

3. The finding of the first appellate Court that Mahesh Gond and thereafter, the defendants are not licensee of the plaintiff is perverse and even otherwise has no adverse bearing to the decree passed by the trial Court. Once the title of the plaintiff is proved, non-examination of the original plaintiff has no bearing in view of the finding recorded by the first appellate Court that the plaintiff is title holder of the suit house. As such, the impugned decree be set-aside and that of the trial Court be restored.

4. The defendants have taken the plea of title and adverse possession, both, which cannot dwell together in view of the decision of this Court in S.A.No.112/2004 (Ashok Kumar Gupta v. Sushila and others), decided on 15-10-2019.

6. Mr. Ravindra Agrawal, learned counsel appearing for the respondents herein / defendants, would support the judgment & decree of the first appellate Court and submit that the plaintiff wa