JUDGMENT

Om Prakash, J. - This is a second appeal against the judgment and decree dated 18.02.1974 of the learned Civil judge, Mainpuri arising out of a suit filed by the Plaintiff-Respondent for recovery of possession of the suit land as described at the foot of the plaint.

2. The plaint case is that the suit land is situated in plot no 4273. The plaint was amended, Before amendment, the Plaintiff claimed possessory title over the land in suit After the amendment, the Plaintiff claimed to have acquired ownership by adverse possession. The Plaintiff claimed that he had purchased the suit land under a sale-deed in the year 1959 from one Chhote Lal who acquired the same under a Sand in the year 1949 from the Rani of Manipuri. Proceedings u/s 145 Code of Criminal Procedure Were initiated by the Plaintiff when the Defendant No. 1. made an attempt to dispossess the Plaintiff on the baiss of the sale deed date 30.05.1964 which was executed in his favour by the Defendant No. 2. The said proceedings were decided in favour of the Defendant No. 1. realizing that the proceedings u/s 145 Code of Criminal Procedure would adversely affect his right, title or interest, the Plaintiff filed the suit for recovery of possession against the Defendants.

3. The suit was resisted by the Defendant No. 1. He claimed his own title and possession over the suit land. It was admitted that the suit land is situated in plot No. 4273. The learned Munsif struck off several issues and held that the Plaintiff had become owner of suit land by virtue of adverse possession. He also held that the predecessors of the Plaintiff, namely, Chhote Lai were also the owner of the suit land. The learned Munsif, however, took the view that the Rani Mainpuri was not the owner of the land in suit and she was not entitled to execute any Sand in respect of that to Chhote Lal. The title and possession of the Defendant No. 1. and his predecessor were negatived by the learned Munsif. The dispute was then carried in appeal by the Defendant No. 1 to the appellate court. Then the learned Civil Judge held that the learned Munsif was wrong in holding that Chhote Lal was the owner of the suit land. He, however, affirmed the finding of the learned Munsif that the Plaintiff was the owner of the suit land by virtue of adverse possession. It was held by him that neither the Plaintiff nor the Defendant nor their predecessors had any title to the land. It was also held that the possession of the Plaintiff and of his predecessor was sufficient "to amount to ouster of all other persons except the real owner " and, therefore, the Plaintiff had perfected his title by adverse possession against the Defendant and all others except the true owner. This is how the appeal of the Defendant was dismissed. Aggrieved by the said order, the Defendant No. 1 has come up in second appeal.

4. I have heard the learned Counsel for the parties at considerable length. Learned Counsel for the Appellant contended that the suit land was lying vacant before the Defendant No. 1 started constructions thereon and, therefore, the nature of possession as claimed by the Plaintiff could not establish the adverse possession. Then it was argued that the plaint having been amended shifting the case from possessory title to adverse possession, the Plaintiff could not succeed in second appeal on account of possessory title and that the Plaintiff can succeed only when the adverse possession is successfully proved by him. It was also argued that the decision of the courts below that the Defendant No. 1 or his predecessors had no title or possession on the suit land is perverse. On the other hand, the Plaintiff Respondent reiterated his adverse possession over the suit land. It was also argued that in any case, the Plaintiff is bound to succeed against the Defendant who has no title to the suit land, on account of his prior possession or possessory title. So the points for determination are:

1. Whether the courts below rightly held that t