JUDGMENT

The appellants/plaintiffs have filed this Second Appeal against the following judgments and decrees;(i) Judgment and decree dated 22.02.2002 passed in Civil SuitNo.144-A/1997 by Civil Judge Class-I, Khilchipur, District Rajgarh.(ii) Judgment and decree dated 02.07.2003 passed in RegularCivil Appeal No.32-A/2002 by Additional Judge, Rajgarh (Biora). Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience. [2] The plaintiffs filed Civil Suit for possession of the landP.H.No.59, Survey No.1131 area 0.024 hectare situated at Village Khilchipur (hereinafter called as ‘ Suit Property’) from the possessionof Nagar Palika Nagar Panchayat Khilchipur/defendant No.1. -3- According to the plaintiffs, father of plaintiff Nos. 1 to 4 and husband of plaintiff No.5 was owner of the suit property and after his death, their names were mutated in the revenue records. Due to ignorance of the plaintiffs, the defendants constructed structure on the some part of the suit property, the remaining land remained in possession of the plaintiffs, therefore defendants be directed to remove and hand over the possession to the plaintiffs.

[3] The defendant Nos. 1 to 3 filed written statement denying the title of the plaintiffs and admitted that there has been a construction since 1955 and land is covered by fencing since then, hence they have prefected the title by way of adverse possession. The Kishanlal during his life time did not object or challenge the possession of the defendants for 18 years therefore plaintiffs have no right to claim the possession.

[4] Six issues were framed by the Trial Court. The plaintiffs’ examined Chandulal (PW-1), Jamnalal (PW-2), Kaniram (PW-3), Basantilal (PW-4) and Pannalal (PW-5) and exhibited 5 documents. In defence, the defendants have examined Raghuraj Singh, Chief Executive Officer (DW-1), Druvnarayan Purohit, Clerk (DW-2) and Tejkaranji, President of Nagar Palika Khilchipur (DW-3) and exhibited two documents.

[5] During pendency of plaint, the defendants have filed anapplication under Order 14 Rule 5 of C.P.C. for framing additional issues in respect of limitation, valuation, Court Fees and Jurisidction.

Vide order 19.03.1993, the learned Court has rejected the said application for want of pleadings.

[6] After appreciating the evidence came on record, the issue No.1 in respect of title has been answered against the plaintiffs as no title -4- document prior to 1987-88 was filed and defendant Nagar Pakika has proved the possession since 1955. It has also been observed that even if there was any title of the plaintiffs that has been come to end because adverse possession of the defendants. The defendants have failed to prove the issue No.2 that suit land was transferred by way ofacquisition or exchange. The issue No.4 has been answered against the plaintiffs that the defendants have forcefully taken the possession on01.10.1989. The issue No.5 has been answered in favour of the defendants that they have perfected the title by way of adversepossession. Vide judgment dated 22.02.2002, the Civil Suit was dismissed for possession as well as meanse profit. [7] The plaintiffs preferred an Appeal before the District Court andsame was also dismissed vide judgment and decree dated 02.07.2003, hence, present Second Appeal before this Court.

[8]Vide order dated 12.12.2003, this Court had admitted the Second Appeal on the following substantial questions of law:

‘(1) Whether the Courts below have erred in holding that the respondent Nagar Palika has perfected the title over the suit land by averse possession ? (2) ‘Whether the dismissal of the suit is against the facts and law applicable in the case ?’ [9] During pendency of this Second Appeal, the appellant No.1 and 4 and legal heirs of appellant No.2 have sold the part and partial of suitproperty vide registered sale deed dated 26.06.2010 to Santoshi Bai, Radhyshyam and Giriraj. They filed an appli