The plaintiff's failure to execute a compromise decree within the limitation period barred the suit, and evidence provided by a power of attorney holder was insufficient.

JUDGMENT

Dwarka Dhish Bansal, J.- This second appeal has been preferred by the plaintiff/appellant challenging the judgment and decree dated 11.04.1997 passed by Additional District Judge, Khurai, District Sagar in Civil Appeal No.14-A/1991 affirming the judgment and decree dated 26.03.1991 passed by 3rd Civil Judge Class-II, Khurai in Civil Suit No.15-A/1990, whereby appellant/plaintiffs suit for declaration of title and recovery of possession has been dismissed.

2. Short facts of the case are that the plaintiff, claiming himself to be Bhoomiswami/owner of land Khasra No.412/3-Ka area 0.46 acre situated at Khurai, District Sagar, instituted a suit for declaration of title and recovery of possession with the averments that the defendant has, who is owner of adjacent land Khasra No.412/3-Ja, encroached upon the plaintiffs land over an area 50x 70 shown from red color and marked in the plaint as A-B-C-D, regarding which a compromise decree was also passed on 07.08.1965 (decree drawn on 01.09.1965) in Civil Suit No.14-A/1965 whereby the plaintiff was held to be owner of the suit land. By way of amendment it is alleged in the plaint that after passing of the compromise decree on 07.08.1965 the plaintiff was put in possession of the suit land, but in the month of October1977 the defendant took possession again. With these averments the suit was filed on 19.06.1980.

3. Upon service of summons, the defendant appeared and filed written statement denying the plaint allegations and also denied the fact of encroachment with the submissions that he is in possession of the land Khasra No.412/3-Ja, which he purchased from Mst. Pyari Bahu, and is in possession since then and also claimed title on the basis of adverse possession.

4. On the basis of pleadings of the parties, learned trial Court framed issues and recorded evidence of the parties and upon due consideration of the entire material available on record, dismissed the suit vide judgment and decree dated 26.03.1991 and upon filing civil appeal by the plaintiff, learned first appellate Court affirmed the judgment and decree of trial Court vide impugned judgment and decree dated 11.04.1997. Against which the instant second appeal has been filed by the plaintiff, which was admitted for final hearing on 01.11.1999 on the following substantial questions of law:-

"1. Whether the finding of the trial Court and the first appellate Court that the land in dispute marked as A, B, C, D in the plaint map is not a part of the land which was allotted to the plaintiff as part of Khasra No.412/3-ka by the compromise decree in Civil Suit No.13-A/1965, is perverse ?

2. Whether the finding that the defendant has perfected his title to the land in dispute by adverse possession is also perverse?"

During the course of hearing final arguments on 20.09.2023, this Court formulated two more following substantial questions of law :-

"3 . Whether after passing of compromise decree of restoration of possession in favour of the appellant/plaintiff on 01.09.1965 (07.08.1965) (Ex.P/5), the plaintiff could file the fresh suit for possession for the same property on 16.06.1980 and whether it was maintainable ?

4. Whether in light of decision of Supreme Court in the case of Janki Vashdeo Bhojwani vs. Indusind Bank (2005) 2 SCC 217 testimony of Kundanlal was admissible in evidence ?"

5. Learned Senior counsel for the appellant submits that title of the plaintiff over the land in question is an admitted fact which was affirmed even by passing compromise decree dated 07.08.1965 (Ex.P/5). Learned counsel further submits that because the plaintiff is owner of the suit property, therefore, it is for the defendant to plead and prove adverse possession and as defendant has not perfected title on the basis of adverse possession, the suit filed for possession based on title ought to have been decreed. He further submits that in pursuance of the compromise decree dated 07.08.1965 the plaintiff was put in possession of the suit property and