Mere existence of an akhara on vacant land does not constitute adverse possession, and a suit for declaration and injunction is not maintainable after an order of delivery of possession in proceedings under Section 145, Cr. P. C.

( 1 ) THIS second appeal filed by two of the defendants is directed against the judgment of Hari Har sharan, Civil Judge, Allahabad, reversing the decree of the trial Court and decreeing the plaintiffs suit.

( 2 ) THE dispute related to a piece of land which was said to be part of No. 192 and which was in the form of an akhara. The plaintiff alleged that he had been in adverse proprietary possession of this land for more than twelve years but defendants Nos. 2 to 5 in collusion with defendant No. 1 started proceedings under Section 145, Cri. P. C. and obtained delivery of possession from the court of the Magistrate. The plaintiff alleged that neither defendant No. 1 not any other defendant remained in possession of the land in dispute and consequently the present suit was filed for a mere declaration and injunction restraining the defendants not to take possession over the land in dispute. The relief for possession is conspicuously absent from the plaint.

( 3 ) THE defence was that the land in dispute was not part of No. 192 and that the plaintiff had nothing to do with the land in dispute. It was said to belong to one Shiv Sahai alias Sahai who was the predecessor of defendants Nos. 2 to 6. It was further alleged that one Sita Ram started an akhara on the land in dispute sometime in the year 1931 and executed a sharkhat in favour of lakshmi Nath defendant and the predecessor in interest of the other defendants and so Sita "ram and after him defendant No. 1 remained in possession of the akhara on behalf of defendants Nos. 2 to 6. Plaintiffs possession was denied.

( 4 ) THE trial Court held that the plaintiff was not the owner of the land in suit nor had he acquired any title by adverse possession. The suit was accordingly dismissed. The lower appellate Court held that the land in dispute was part of No. 41/a which later on formed part of plot No. 192 and that it belonged to Shiv Sahai alias Sahai who was admittedly the predecessor in interest of the defendants. The earned Judge, however, came to the conclusion that the akhara existed in the land in suit and that the plaintiff having remained in possession his possession was adverse to the real owners. It was on this basis that the learned Civil Judge set aside the decree of the trial court and granted the plaintiff a declaration and also a decree for injunction. Feeling aggrieved two of the defendants have filed this appeal.

( 5 ) SRI A. P. Pandey learned counsel for the appellant has raised two arguments in the case. The first is that the lower appellate Court gave an erroneous finding about plaintiffs possession and in any case mere existence of an akhara on the land in dispute could not be deemed to be sufficient in law to prescribe a title by adverse possession in favour of the plaintiff particularly when the evidence did not prove any exclusive possession nor any hostile possession to the defendants who were the real owners. His second contention is, that after an order of delivery of possession in favour of the defendants in proceedings under Section 145, Cri. P. C. , a mere suit for declaration and injunction was not maintainable. Sri G. N. Kunzru learned counsel for the respondent while supporting the judgment of the lower appellate Court has contended that the finding of fact given by the lower appellate court is final and when that Court has found that the possession of the plaintiff was adverse this has to be accepted by this Court. According to him the possession of the plaintiff was adverse and the court below was right in granting the plaintiff a decree. It is also his submission that when the plaintiff was already in possession despite the order of the criminal Court it was not at all necessary for him to claim the relief for possession.

( 6 ) IN the instant case the plaintiff did not claim any title or ownership in the land in dispute other than the right by adverse possession. There was, therefore, no question of presumption of possession in pla