JUDGMENT :

SURYA PRAKASH KESARWANI, J.

1. Heard Sri Vishnu Singh assisted by Sri A.K.Rai, learned counsel for the appellants and Sri Kunal Ravi Singh, learned counsel for the defendant-respondents-Ist set (Nos.1 to 8).

Facts of the Case

2. Briefly stated facts of the present case are that by the impugned judgment dated 26.4.1989 in Original Suit No.95 of 1974 (Sudama Ji v. Chhotey Lal and others), the partition suit filed by the plaintiff-appellant was dismissed. The trial court held that the plaintiff-appellant is the co-owner being son of late Beni Madhav but dismissed the suit on the ground that the defendant co-sharer of house no.1(as shown in the plaint) has perfected his title by adverse possession. During pendency of the suit the plaintiff-appellant Sudamaji sold his 1/3rd share in House No.1 to Smt. Sitapati Devi and another (appellants of connected First Appeal No.363 of 1989).

3. Aggrieved with this judgment, the plaintiff-appellant Sudami Ji filed First Appeal No.326 of 1989, while the vendee appellant Smt. Sitapati Devi and another filed connected First Appeal No.363 of 1989.The defendants-respondents filed a cross objection in the First Appeal No.326 of 1989 to challenge the finding that the plaintiff-appellant is the son of Beni Madhav.

4. With the consent of the learned counsel for the parties both the appeals are being finally heard together.

Submissions-

5. Learned counsel for the appellants submits as under:

(i) Plaintiff Sudama Ji has proved by the evidences that he is the son of Beni Madhav. The trial court answered all the relevant issues in this regard in favour of the plaintiff.

(ii) Total 16 issues were framed in the suit but no issue was framed on the point of adverse possession. Therefore, without relevant pleadings and evidences the court below has erred in returning the finding of adverse possession. Reliance is placed on the judgment of Hon'ble Supreme Court in Joynath Gola and others v. Bhabani Prasad Choudhary and others Judgment Today 1997(3) SC 720.

(iii) The court below has committed a manifest error of law and facts to return a finding of adverse possession against the plaintiff co-owner of House No.1. That apart, the alleged adverse possession was not within the knowledge of the plaintiff, as he was minor at the time of death of his father. Reliance is placed on the judgment of Hon'ble Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, judgment of this Court in Ayodhya and others v. The Deputy Director of Consolidation and others, 1978 AWC(Alld.) 478 and in the case of Shambhoo v. Deputy Director of Consolidation and others 2014(10) ADJ 557.

6. Learned counsel for the defendants-respondents (Ist set) submits as under:

(i) The will on the basis of which the plaintiff-appellant has claimed to be the son of late Beni Madhav, was never proved in accordance with the provisions of Section 68 of the Evidence Act. The original will was not produced. The attesting witnesses were also not produced. Section 69 of the Evidence Act, is not attracted on the facts of the present case, as the attesting witness was alive at the time of filing of the suit.

(ii) With regard to the testimony of P.W. 1, the court below recorded a perverse finding that he was the attesting witness whereas his evidence itself shows that he was neither the attesting witnesses nor he appeared before the Registrar at the time of execution of the will-deed of Beni Madhav dated 5.11.1957.

(iii) No evidence could be led by the plaintiff-appellant to establish that he is the son of Beni Madhav. Therefore, the finding recorded by the court below that the plaintiff-appellant Sudama Ji is the son of Beni Madhav, is perverse and deserves to be set aside.

7. No other point has been argued before me by the learned counsels for the parties.

Discussion and Findings

8. I have carefully considered the submissions of the learned counsels for the parties.

9. Considering the submissions of the learned counsels for the parties and with their consen