(1) This is an appeal against the decree of District Judge Anantnag dated 31-3-1971 by which he reversed the judgment and decree of Sub Judge Anantnag dated 30 9-1 67 dismissing the suit of the plaintiffs-respondents 1, 2, & 3.

(2) The suit pertained to land measuring 4 marlas 3 Sirsai and 28 1/2 sqft entered as Abadi Deh™ under survey No 2684/Min in Mohalla Shan Shaib. Anantnag town. The plaintiffs based their title to it on a registered sale deed dated 14th Poh 1983 (Bik) executed by one, Abdullah Joo Guhnoo, in favour of their father, Shri Abdul Ahad Baba, and alleged that they were in possession until dispossessed from a portion thereof measuring 320 sq. ft. which was built upon and otherwise encroached by the defendants, first in May 1958 and then about six months prior to the institution of the suit. The suit was instituted in November 1961 and the prayer was for possession of the portion encroached upon and for injunction as respects the portion remaining.

(3) The defendant N. 2, respondent N. 4 herein, admitted the claim of the plaintiffs. The appellant-defendant No. 1 however contested it He pleaded that the land was in his possession adversely to the plaintiffs from the time of his forefathers for a period of more than thirty years and that he himself had built a shed thereon about fifteen years prior to the suit.

(4) Before the lower courts and in this court the controversy centre on the questions whether the plaintiffs had title in the suit land and whether they were in possession within twelve years of the suit and also whether the defendants had acquired title by adverse possession.

(5) I will first turn to the question of title. On this question the trial court has found against the plaintiffs. The ratio of its decision is that the land being Abadi Deh, the title thereof could only be possessory and since, as the trial court said, Abdullah Joo Guhnoo was never in possession, no valid title could be held to have been passed to the father of the plantiffs. In this the trial court did not only presume law bearing on Abadi Deh in towns but also carved out a case for the contesting defendant which he had never set up in his written statement. Nowhere in the said written statement was it ever pleaded by the contesting defendant that no title had passed to the plaintiffs father or that the title passed to him was defective. On the other hand, on the averments made by him, it can be justifiably concluded that he did not question that the title of the plaintiffs, which made it unnecessary even to raise an issue on this point. That is so like this In para 1 of the plaint the plaintiffs stated:-

"In pursuance of the sale deed dated 14th Poh 1983 (Bik) the father of the plaintiffs purchased land measuring 4 marlas 3 sarsai 28 1/2 sqft as per plan annexed therewith under survey No: 2684/ min from one Abdullah Joo Guhnoo and since then the father of the plaintiffs and, after his death, the plaintiffs have continued in possession of the and except during the period between 2007 and 2009 Bik when it was in the permissive possession of one Ghulam Rassol Malik who collected stones on it during the aforesaid period and then returned the land along with stones to the plaintiffs on payment of the cost by them."

In reply in Para No 1 of the written statement it was pleaded as under:-

"That Para of the plaint is not admitted. The plaintiffs and their father have never been in possession. The suit is barred by time."

Else-where also in the written statement this position was not traversed. On the other hand in the additional plea it was again emphasized that possession had descended on the defendant from his ancestors,

In this state of pleadings it is difficult to say that the allegation about title set up by the plaintiffs was controverted regard being had to the law laid down on the highest authority in the country of the Supreme Court in Sheikh Abdul Rehman Vs. Union of India (AIR 1970 S C. 479).

According to the law of pleadings the defendan

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