Reserved On : 10/09/2020 Pronounced On : 25/09/2020

1. Heard, learned counsel for the appellant, Mr. Pratyush Kumar assisted by Ms. Shalini Kumari.

2. The appellant / defendant has assailed the impugned judgment dated 17.05.2019 and decree dated 27.05.2019 passed by learned Principal District Judge, Jamtara in Civil Appeal No.50/2018, affirming the judgment dated 27.09.2018 and decree dated 09.10.2018 passed by learned Civil Judge(Sr. Division)-I, Jamtara in Title Suit No.19/2015, whereby the suit has been decreed in favour of the plaintiff and the court below has declared the plaintiff as bonafide owner of the suit land having perfect right, title and interest and legally entitled to have the possession of the suit property. If the suit property is found in possession of the defendant, the defendant is directed to hand over the possession of suit property to the plaintiff within a period of two months from the date of pronouncement of the judgment, otherwise the plaintiff will be at liberty to get possession of the land by legal recourse.

3. Learned counsel for the appellant has assailed both the judgments and decree of the courts below on the ground that the courts below have not considered the case of the defendant and not appreciated the lacuna in the plaintiff's case.

4. Learned counsel for the appellant has submitted that from bare reading of paragraph nos. 1 to 6 of the plaint, it appears that defendant is in possession of the suit land since long, some time in the year 1980 and as such, he has got title by way of adverse possession.

5. Learned counsel for the appellant has submitted that Section 27 and Article 65 of the Limitation Act put an embargo upon the genuine owner after considerable time to interfere with the possession of the defendant, though by way of adverse possession, as such, trial court as well as appellate court have not considered the judgment passed by the Apex Court in the case of Rame Gowda (Dead) by Lrs. Vs. M. Varadappa Naidu (Dead) by Lrs. reported in (2004) 1 SCC 769, State of Rajsthan and others Vs. Shiv Dayal and Another reported in (2019) 8 SCC 637 and Rabinder Kaur Grewal and Others Vs. Manjit Kaur and Others reported in (2019) 8 SCC 792, as such, impugned judgment and decree passed by both the courts below are fit to be set aside.

6. Learned counsel for the appellant has submitted that appeal is barred by delay of 03 days and for condonation of same, I.A. No.3385/2020 has been filed, as such, delay may be condoned.

7. Learned counsel for the appellant has submitted that I.A. No.3386/2020 has been filed under Order-XLI Rule-5 CPC for stay of the execution of decree passed by courts below.

8. This court while sitting in second appeal under Section 100 CPC is conscious of the legal proposition as held by Apex Court in the case of Gurnam Singh (Dead) by Lrs. Vs. Lehna Singh (Dead) by Lrs. reported in (2019) 7 SCC 641 relying upon the judgment passed by Apex Court in the case of Kondiba Dagadu Kadam Vs. Savitkibai Sopan Gujar reported in (1999) 3 SCC 722 = AIR 1963 16 SC 33, the re-appreciation of evidence is not allowed and there is distinction between appeal under Section 96 CPC and appeal under Section 100 CPC.

9. It appears from the record, that plaintiff, Paspati Devi has filed Title Suit No.19/2015 against the defendant / appellant, Abhishek Yadav, son of Late Meghnath Yadav with regard to declaration of her right, title & interest over the suit property and confirmation of possession or in alternative for recovery of possession of the suit land, which she has purchased vide registered sale deed no.744 dated 26.04.1996 measuring 6 decimals of land of Plot no.34, which has been mentioned as 34/11 of Khata no.128/ka of Mouza Mihijam no.15 from rightful owner of the land namely, Madhusudan Pal and land was properly mutated vide final order in Mutation Case No.48/1997-1998 and the rent receipts have been brought on record as Exhibit-3 to 3/2. The sale deed has been brought on record as Exhibit-2.

10. I