A party can exclude the period of limitation for the purpose of getting the exclusion of the period of limitation if they were pursuing their cause in a court that did not have jurisdiction and that they were diligent in pursuing their cause.

( 1 ) THE appellants are assailing the judgment and decree passed by Ist Addl. District Judge, Ratlam in the matter of Civil Appeal No. 6-A/79.

( 2 ) SHRI Amarsingh learned counsel appearing for the appellants submitted that the learned Ist Appellate Court committed the error of law when the matter was revolving on two points : (I) That the appellants were in adverse possession of suit land even as per averments made by Shankerlal Bhat before Sub-Divisional-Officer, Alot. When he averred that he was dispossessed from 28-6-49. (ii) For the purpose of getting the exclusion of period of limitation, Shankerlal Bhat was not prosecuting the cause in the Court which did not have the jurisdiction, and also he did not prove that he was prosecuting the said cause diligently.

( 3 ) FOR substantiating his contention Shri Amarsingh submitted that it is not necessary for the appellants to make out the special pleadings of adverse possession. They were entitled to make such a case from the averments made by Shankerlal Bhat in an application which was submitted before the S. D. O. , Alot and in the plaint. So far as second point is concerned, he submitted that as Shankerlal Bhat did not bring the LRs. of Phoolchand on record within time, the said second appeal abated and that shows that they were not diligent in pursuing the cause.

( 4 ) FOR substantiating his arguments Shri Amar Singh placed reliance on the judgment of Supreme Court in the matter of Nagubai Ammal v. B. Shama Rao (AIR 1956 SC 593 ). Wherein Supreme Court held that :"although no specific plea that the sale in favour of the defendants was affected by the doctrine of lis pendens was raised in pleading of the plaintiff and no specific issue was directed to that question the defendants went to trial with full knowledge, that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same. In the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them. " he also relied on the judgment of Supreme Court in the matter of Kali Prasad Agarwalla (dead by LRs) v. M/s. Bharat Koking Coal Ltd. reported in AIR 1989 SC 1530, wherein the Supreme Court held that : "where the parties went to trial knowing fully well what they were required to prove and they had adduced evidence of their choice in support of the respective claims and that evidence was considered by both Courts below, they could not be allowed to turn round and say that the evidence should not be looked into. "

( 5 ) BOTH these judgments are not concerned with the plea of adverse possession which requires that the person making contention of adverse possession has to aver that he was in continuous physical possession of the property in question, peacefully, hostile to the title of the owner. No such specific plea has been taken by the present appellants as indicated by W. S. filed in the suit.

( 6 ) SHRI Amarsingh also placed reliance on the judgment of this Court in the matter of Ishwardin v. Ganpat reported in 1985 MP WN (40) 47, wherein the facts were :"it has been averred in the plaint that a sale deed dt. 19-5-1960 was executed by the defendant Ganpat in favour of the plaintiff Ishwardin for a consideration of Rs. 550/- in respect of the suit land and the plaintiff was put in possession of the suit land; there was a contemporaneous agreement to recover the suit land, in case the defendant repaid the sum of Rs. 550/- within three years, i. e. , up to 19-5-1963; and the defendant unlawfully dispossessed the plaintiff from the suit land in the year 1962. It was then pleaded that the plaintiff had perfected his title to the suit land on 19-5-1963, i. e. , on expiry of the three years period within which repayment had to be made by the defendant, requiring reconveyance by the plaintiff to the defendant. The suit for possession was filed on 2-1-1975, claiming it to be wi