Claims of co-tenancy conflict with claims under Section 123 of the U.P. Act; the defendants failed to establish rights necessary to invoke protections under adverse possession.

JUDGMENT

Jaspreet Singh, J.

This is the defendants' second appeal against the judgment of reversal passed by the Lower Appellate Court dated 19.03.1986 passed in Civil Appeal No.113/1983 by which the appeal preferred by the defendants under section 96 CPC was dismissed and the Cross Objection filed therein by the plaintiffs came to be allowed, as a result, the suit of the plaintiffs-respondents came to be decreed in its entirety.

2. The instant second appeal was admitted by this Court by means of the order dated 15.07.1986 on Ground No.7 as enumerated in the memo of second appeal, which read as under:-

"Whether the learned Appellate Court committed an error of law in not considering the case of the defendants-appellants under Section 9 of the U.P. Act No.1 of 1951 inasmuch as the Courts below have failed to consider the evidence on record to the effect that the house of the defendants-appellants existed prior to commencement of U.P. Act No.1 of 1951 and as such the defendants-appellants perfected their rights by adverse possession as the defendants-appellants are entitled to protection under Section 123 of the U.P. Act No.1 of 1951."

3. In order to appreciate the controversy involved in the instant second appeal, certain brief facts giving rise to the instant appeal are being noticed first.

4. At the outset, it may be noticed that the original plaintiffs and the defendants had expired during pendency of the proceedings, however, upon applications moved, the legal heirs of the respective parties have been brought on record. However, for the sake of convenience, the Court shall be referring to the parties as they were impleaded before the trial Court.

5. The original plaintiffs namely Bhagawat and Ram Bharosh filed a regular suit No.104/1977 seeking a decree of perpetual injunction and mandatory injunction in respect of sirdari Plot No.1772, measuring 22 biswas, 12 dhoor, situate in Village Dadupur, Ransingh, Paragana, Tehsil and District Pratapgarh. The suit was filed against Sampu and Mewa Lal with the averments that the property in question shown by letters G, H, I, J, K, L and G admeasuring 4 Biswas, 13 Biswansi of Plot No.1772 corresponded to the Old Plot No.1651 of the second settlement and corresponding to Plot No.881 in the first settlement situate in Village Dadupur, Ransingh, Paragana, Tehsil and District Pratapgarh was in the ownership of plaintiffs, who were its Bhumidhar and they had their trees and bamboo clumps. The defendants, who allegedly constructed the house shown by letter H-1 sometimes in the year December, 1975 and a dalan which was shown by letter D-1 in December, 1976 and the defendants further opened a new door on the western side of dalan, one hut towards the western side sometimes in April, 1977 over the land in dispute for which the plaintiffs claimed possession including demolition of the illegal construction. It was also alleged that the defendants had cut the bamboo clumps during pendency of the suit for which additional prayer seeking damages of Rs.300/- was also sought.

6. The suit came to be contested by the defendants wherein they had taken a plea that the property in dispute belonged to their common ancestors and as such Plot No.1772 was the grove of the family since the time of Tulsi i.e. the common ancestor. It was also stated that the constructions as alleged were raised much prior to the abolition of the Zamindari and moreover the land came to be vest