' This is a regular second appeal under section 100, C.P.C. Against the judgment and decree passed by the learned District Judge, Gujrat, dated 25-11-1975 confirming the judgment and decree, dated 4-11-1975 passed by the learned Civil Judge, Gujrat.
2. The plaintiff brought a suit for possession of three Marlas of land from Khasra, No,258 alleging that he is the owner of agricultural land measuring 3 Kanals and 7 Marlas entered in Khasra No,258, and situated in Village Kalra Kalan and that the respondent has encroached upon three Marlas from the said Khasra number and raised new construction over it and when asked to vacate the possession, the defendant refused.
3. The suit was contested on the question of ownership, limitation, nature of the property, valuation, defectiveness of the plaint and the defendant claimed ownership on the basis of adverse possession.
4. From the pleadings of the parties, the learned Civil Judge, framed the following issues:
(1) Whether the plaintiff is owner of the disputed property? OPP.
(2) Whether the suit is time-barred? OPD.
(3) Whether the suit y is land or the house? OPP
(4) Whether the suit property is urban immovable property? OPD.
(5) Whether the plaintiff has no locus standi? OPD.
(6) Whether the suit is properly valued for the purposes of court-fee and jurisdiction? OPD.
(7) If Issue No,1 proved whether the defendant has encroached upon the suit property, if so to what extent? OPP.
(8) Whether the defendant has become owner of the suit property through adverse possession?
OPD.
(9) Whether the plaint is defective for non-joinder of map of suit property? OPD.
(10) Relief.
5. The learned Civil Judge, came to the conclusion that the suit was time-barred and it was not properly valued and, therefore, dismissed it.
6. The plaintiff preferred appeal and the learned District Judge, Gujrat confirmed findings of the learned Civil Judge and dismissed the appeal. The appellant has now come in regular second appeal before this Court.
7. The notice of the appeal was given to the respondent, but none has appeared, as such, ex parte arguments were heard.
8. The learned counsel for the appellant has submitted that the impugned judgment was passed on the assumption that none of the witnesses who appeared in the case had stated that the defendant has come into the possession of the disputed land after holding in the villages were consolidated, which happened about 15 years ago. Learned counsel also submitted that the assumption was factually incorrect and that the consequent finding that the defendant was in an adverse possession can be challenged in the second appeal.
9. In order to become a possession adverse it should be under a claim of a title, hostile to the trae owner and actual, open, uninterrupted, notorious, exclusive and continuous. In the present case, it has come on the record through the mouth of Allah Ditta son of Ahmad Khan (P.W.1) that when a defendant took possession of the land in dispute, there had been dispute between the parties.
Ghulam Rasul son of Heera (P.W.2) aged about 50 years also stated that there had been dispute and criminal case regarding the said possession was registered. In his cross-examination, he stated that the said criminal dispute had taken place 4-1/2 years before. The criminal case was filed by the father of the plaintiff and the defendant Imam Din and others preferred an appeal and they were acquitted and thereafter, the civil suit was filed. Allah Ditta (plaintiff/P.W.31 also appeared and has deposed that the land in dispute was in possession since his forefather and the defendant/respondent had occupied it in the year 1968-69 but when the defendant wanted to make a house on it, he (the plaintiff) resisted and filed a criminal case against defendant. In which, Imam Din and his son, Muhammad Shafi and Muhammad Akram etc. Were convicted. They preferred an appeal which was accepted and the plaintiff was directed to file a civil suit and that when the civil suit was filed, at that time, the defendant constructed a Kothi and a Kothari. During the pendency of the civil suit, the defendant made further encroachment and a Local Commissioner was appointed who inspected the site in his presence.
10. In these circumstances, there remains no doubt, that the petitioner/plaintiff was owner in possession of the suit land within 12 years of the institution of the suit. As such, the learned Courts below have wrongly concluded from the evidence on the record that the suit was time-barred. In a suit for recovery of possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession, the limitation provided by Article 142 of the Limitation Act, 1908 is 12 years from the date of dispossession or discontinuance. In the present case, it has come on the record that the suit was filed on 21-3-1972 and date of possession according to P.W.1 was in the year 1971 and according to P.W.2 in the year 1968-69. This fact is also substantiated by Exh,P.1 which is Jamabandi for the years 1966-67, the plaintiff is shown as owner and in the cultivation Khana, it is mentioned as self-cultivated. The Khasra Girdawari (Exh.P.2) for the period 3-11-1967 to 12-3-1971 also shows that it was owned by Allah Ditta self- cultivated and either some crop is mentioned in Kharif or in Rabi. The defendant appeared himself and produced copy of Khatooni ,Exh.D.1, copy of field book of Raqba Ishtimal Shuda of the year 1961 as Exh.D.2 and copy of Shajra Kishtwar for the years 1911-12 as Exh.D.3. In his cross-examination, he submitted that they were occupancy tenants in the Village Kamran and that they had not deposited the Malkana. Rather, their elders had deposited it and that they were in possession as owner. He admitted that on the north of their house in dispute is the land of Allah Ditta. He denied the encroachment on the land of Allah Ditta and stated as there was no Patwari and others at the time of measurement by the Local Commissioner, it was not made correctly. He also deposed that he did not know that the house was made in the year, 1968.
11. According to Exh.D/3 Shajra Kishtwar (Field Map) of 1911/12 the Ithasra Nos.632, min to 635 min and 644 min, were the fields in the revenue estate of Kamra Diwan Singh, Tehsil Gujrat. The new number of which was shown in Exh.D/2 (Field Book of the area consolidated of the said village in the year 1961) as Khasra No,258. It also mentioned that it was 3 Kanals and 7 Marlas Chahi of the Awwal Quality. The same fact is mentioned in the Khatooni Exh.D/1. It also mentioned that Khasra No,635 is owned by Umar Hayat, Ghulam Hussain and Muhammad Khan sons of Imam Din. They were not having any house constructed uptil 1961 in the land owned by the petitioner and keeping in view of Exh.P.2 which is Khasra Girdawari the position is the same even uptil 12-3-1971. The rent and revenue had also been paid by Allah Ditta as per Exh.P.1.
12. In this view of the matter, the suit was within time. So far as the valuation of the suit is concerned the findings of the learned Civil Judge as well as the learned District Judge are also erroneous as a subject-matter for the purpose of suit and appeal was not, the superstructure over the land but the vacant possession of the land itself. As such the same are set aside and the suit is decreed with no order as to costs. The defendant shall have the right to remove the superstructure within four months.