ORDER

1. The present appeal is filed under Order 41 rule 23 of CPC against the order dated 31.3.2006 passed by I ADJ, Ujjain in Civil Appeal No.31A/2005 whereby the case has been remanded back to the trial Court.

2. Facts of the case are that plaintiff/respondent filed a suit for declaration and permanent injunction stating that the plaintiff had a house in village Lekoda, district Ujjain. Adjacent to the hosue of the plaintiff, the house of the defendant-appellant No.1 is situated. On the right side of the plaintiff, the house of it open land (Bada) of the ownership of the plaintiff is situated. Size of that land is 45 x 22 ft. This disputed land has been shown in the map in red line. Boundaries of the land is described in para No.1 of the plaint. It is further pleaded that appellant/defendants No.1,2 and 3 tried to forcibly take possession of the land and the defendant/appellants No.4,5 and 6 opened a door and on raising objection by the plaintiff the door was closed but they are challenging the title of the plaintiff, hence they were made parties in the suit.

3. The plaintiff claimed that he has got this land from his father which he had purchased 40-45 years ago from Babulal Lohar in Rs.10/- and since then the plaintiff is in possession of the suit land. Earlier the plaintiff using that land for throwing garbage of the house. Lateron on father of the plaintiff was growing vegetables on it. Plaintiff got permission from Panchayat to construct a house and the defendants raised objection and the fact was admitted that the land was of the possession of the plaintiff but on lapse of time price of the land has been rised, therefore, the defendants are trying to show that the land in dispute is of their ownership and attempting to use the same. The defendants are trying to take possession of the land on which proceedings under section 145 Cr.P.C. and case No. 1488/89 was registered. The Court did not decide the dispute and dismissed the case. Taking advantage of the decision of the Court the defendants are trying to take possession of the land in dispute and using the same, therefore the suit was filed

4. The defendants No.1 to 3/appellants and defendant Nos.4 to 6 filed their separate written statements.

5. The defendants No.1 to 3 denied the plaint allegations. Plaintiff filed an application for permission to construct the house. Ramprasad raised objection. Plaintiff had agreed to sell the land dispute in Rs.10,000/- with one Ambaram and when Ambaram tried to wire fencing the land in dispute the defendants raised objection and report was lodged. Upon this the police started proceedings under section 145 Cr.P.C.. Plaintiff did not make valuation of the suit and did not pay Court fees.

6. In both the written statements it is pleaded that their ancester Chhiterji had two sons – Jagannath and Kashiram. Jagannath had two sons defendants No. 2 and 3 and Ramprasad was son of Jagannath and defendants No. 4 to 6 are their heirs. There was a partition between Jagannath and Ramprasad, according to which the defendants are using and enjoying the land. Ramprasad was ordered by Panchayat to close the door, against which an appeal was preferred before the SDO, Ujjain which was decided on 31.12.1975 and matter was remanded back to Panchayat for decision on merits which has not been heard till date. Against the order of SDO, a revision was filed by the Gram Panchayat which has also been dismissed. The land in dispute is in possession and ownership of the defendants. The defendants are in possession of the land since more than 50 years in the knowledge of the plaintiff, hence on the basis of adverse possession also the defendants have perfected their title. Suit is time barred and prayed to dismiss the suit. Learned trial Court after recording the evidence of the parties dismissed the suit, against which plaintiff preferred an appeal which was allowed and the case has been remanded for fresh decision.

7. Counsel for the appellants submits that