JUDGEMENT

This second appeal has been filed by plaintiffs challenging the judgment and decree dated 24.12.1997 passed by XII Additional District Judge, Jabalpur in civil appeal no.11-A/97 confirming the judgment and decree dated 24.12.1996 passed by IX Civil Judge Class-II, Jabalpur in civil suit no.18-A/96, whereby learned trial Court dismissed the plaintiffs’ suit filed for possession of plot no.77, block no.29, situated at Miloniganj ward, Jabalpur as shown in red colour in the plaint map.

2 .The facts in short are that, the original plaintiffs Shikharchand, Govinddas and Vallabhdas Jain instituted a suit for possession of the said plot claiming themselves to be owner of it and alleged that the same was given to the original defendant Mithailal on license in the year 1964 with the assurance that after arrangement of the accommodation, he would hand over peaceful possession to the plaintiffs after removing the debris from the plot. It is also alleged that for raising construction of house on the plot, the plaintiffs also provided certain material to the defendant. The plaintiffs many times requested the defendant to handover possession but despite giving assurance he did not return possession. In the year 1976, the defendant started raising construction by making addition and alterations, then the plaintiff 3 issued a notice on 21.05.1976 requesting the defendant not to raise construction and to hand over vacant possession and after service of notice, the defendant approached to the plaintiffs and requested to let him completed the construction, which was permitted by the plaintiffs. It is alleged that in the year 1984, the plaintiffs again requested the defendant to hand over vacant possession of the plot, but he avoided, then the plaintiffs issued notice on 17.05.1984 cancelling the license and asked him to return possession of the plot, which was replied by the defendants illegally, making false allegations. On inter alia allegations the suit was instituted.

3 .The defendant appeared and filed written statement denying the plaint allegations and also denied ownership of the plaintiffs over the suit plot (house) and it was clearly contended that Battilal and prior to him Shri Murarilal, Gendalal and Bhagchand were owners of the suit plot. It was also contended that the house is in existence for more than 25 years or more. The map annexed with the plaint is wrong and it does not give the correct measurements. It is contended that plaintiffs are not owners of the suit plot but the defendant is in possession of the same and there is single storied building constructed over the suit plot. By way of amendment, the defendant had also taken plea of adverse possession over the suit plot claiming himself to be in possession for more than 28 years and alleged that prior to which, father of defendant late Shri Bhagchand was in possession of the suit plot. With the aforesaid contentions, the suit was prayed to be dismissed.

4 .On the basis of plaint allegations, learned trial court framed as many as nine issues and recorded evidence of the parties and after considering the same, vide its judgement and decree dtd. 24.12.1996 held that the plaintiffs are owner of disputed plot and defendant is not proved to be licensee of the plaintiffs and held that the plaintiffs are not entitled for possession of the disputed plot. Considering the long possession of the defendant, learned trial Court also held that the defendant has acquired title by adverse possession.

5 .Upon civil appeal filed by the plaintiffs, learned first appellate Court vide its judgment and decree dated 24.12.1997 confirmed the judgment and decree passed by learned trial Court and also held that the suit is barred by limitation.

6 .This second appeal was admitted by this Court on 17.07.1998 on the following substantial questions of law:

“(1) Whether in the facts and circumstances of the case it can be held that the appellant