Point of Law:
In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever the plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since the real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute

JUDGMENT :

1. Heard Sri Neeraj Kushwaha, learned counsel for appellant. None has appeared on behalf of respondent, though called twice. Since it is an old appeal of 1981 and is pending for the last 38 years and find no reason but to proceed ex parte to decide it and proceed accordingly.

2. This is a defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), arising from judgment and decree dated 18.03.1981 passed by Sri Jai Prakash Narayan, Civil Judge, Etawah allowing Civil Appeal No. 118 of 1977. Lower Appellate Court (hereinafter referred to as “LAC”) has set aside judgment and decree dated 11.04.1977 passed by Sri Ravi Narayan, IInd Additional Munsif/Judicial Magistrate, Etawah in Original Suit No.399 of 1973 (hereinafter referred to as “O.S.”) . Plaintiff's suit was dismissed by Trial Court but appeal has been allowed. Hence this appeal by defendant.

3. Suit for delivery of possession of the house in dispute and damages for use of it and pendente lite was instituted by plaintiff-Suresh Chandra against sole defendant-Vidya Shankar alias Daroga. Plaint case, set up by plaintiff, is that house in dispute belong to one Shamsher Khan, who executed a sale deed dated 29.06.1968 registered on 03.08.1968 in favour of plaintiff and thereafter he got possession thereof. The said house was purchased by Shamsher Khan from its erstwhile owner Ram Gopal through a sale deed and at that time defendant was a tenant in the northern part of house, on monthly rent of Rs.5/-which was a month to month tenancy. Defendant was paying rent initially to Ram Gopal and thereafter to Shamsher Khan. After execution of sale deed and purchasing the house, plaintiff informed the above transaction to defendant and asked him to pay rent. In October 1968 when plaintiff went to the house for renovation/construction of rest part of the house which was not in tenancy, defendant raised dispute and also did not pay any rent. Consequently, by notice dated 14.12.1968 which was served upon him on 17.12.1968 his tenancy was terminated. Defendant replied the notice wherein even title of plaintiff was denied. Plaintiff filed suit in Small Cause Court but defendant raised dispute of title, hence plaint was returned and suit then was filed in a regular Court. Plaintiff claimed arrears of rent of Rs. 244/-for the period from 01.07.1968 to 25.07.1973 and pendente lite damages and delivery of possession of house in question.

4. Defendant disputed the claim. He said that he was never a tenant of the house even at the time of Ram Gopal. He was himself owner in possession, hence Ram Gopal had no authority to sell out suit property to anybody. Defendant in the additional pleas stated that the house in question initially belonged to his ancestor Lala Ram Sahai, who had purchased it vide sale deed dated 24.06.1862 from Beni Ram. After death of Lala Ram Sahai his sons Jwala Prasad, Gauri Shankar and Kali Sunder became onwers and in their mutual partition, house in question came to the share of Gauri Shankar. After death of Gauri Shankar, house in dispute is scucceeded by his sons Shiv Shankar Lal, Rama Shankar and vidya Shankar (i.e. plaintiff) and Laxmi Shankar. The middle part of house was in ruinous condition and repaired and reconstructed by defendant incurring his own expenses. No person in the name of Ram Gopal and Shamsher Khan were ever owners and resided in the house. In the alternative, it was also pleaded that in any case, the house in question, for the last more than 100 years, is in possession of defendants and his ancestors, openly and hostile, to the knowledge of erstwhile owner. Ram Gopal, if any, and others, therefore, their title has extinguished and defendant has become owner by way of adverse posssession.

5. The Trial Court formulated following issues:

1. Whether the plaintiff is the owner of the house in suit?

2. Whether the plaintiff is entitled for the damages as claimed? If so its effect?

3. Whether the suit is barred b