Surjit Singh, J.@mdashHeard and gone through the record.
2. This Regular Second Appeal was admitted on the following substantial questions of law:
1. Whether a suit for declaration in respect of ownership can be decreed when it is apparent from the record that other side is in possession of the suit land for more than 75 years?
2. Whether the suit of the plaintiff was within limitation?
3. Whether the learned lower appellate Court has totally misconstrued the evidence in coming to the conclusion that the petitioners are in possession of a portion of the suit land?
3. Respondents-plaintiffs filed a suit for declaration that they were owners of land bearing Khasra Nos. 1023, 1045, 1129, 1131, 1132, 1173, 1175 and 1180, measuring 1326.67 square metres, situate in Mandi Town and that out of the said land, two Khasra Nos., i.e. Khasra Nos. 1023 and 1045, were in their possession, but wrongly recorded in possession of the appellants-defendants and the rest of the land had been illegally occupied by the defendants and, therefore, the respondents-plaintiffs were entitled to recover its possession. By way of further relief, respondents-plaintiffs prayed for passing a decree for possession of the suit land, except Khasra Nos. 1023 and 1045, which they claimed to be already in their possession.
4. Defendants-appellants contested the suit. They pleaded that the entire suit land had been in their possession since the year 1925, when government hospital was constructed thereon and that they had become its owner by adverse possession
5. Trial Court dismissed the suit, holding that the plaintiffs were not the owners nor were they in possession of any portion of the suit land and also that the suit was barred by time.
6. Appeal was filed by the respondents-plaintiffs before the District Judge, who reversed the findings of the trial Court, holding that the respondents-plaintiffs were in possession of Khasra Nos. 1023 and 1045 and were also its owners. With regard to the remaining six Khasra Nos., the first appellate Court found that the respondents-plaintiffs were its owners, but possession was with the appellants-defendants and since they were in possession without any right, title or interest, they were liable to pay compensation to the plaintiffs. With these findings, appeal was accepted and the suit was decreed, declaring that the respondents-plaintiffs were owners in possession of Khasra Nos. 1023 and 1045 and with regard to the rest of the suit land, a direction was issued to the appellants-defendants to acquire the same, in accordance with the provisions of Land Acquisition Act, and to pay compensation to the respondents-plaintiffs.
7. During the course of hearing, it has been noticed that the appellants-defendants had taken a specific plea that the suit land had been in their possession since the year 1925 and their possession was open, hostile, uninterrupted and to the knowledge of the respondents-plaintiffs and thus they had acquired title by adverse possession. However, no issue, with respect to this plea of the appellants-defendants, was framed. As a matter of fact, from a reading of the pleadings of the parties, it is clear that the only controversy involved in the case is - whether the appellants-defendants have acquired title to the suit land, which is recorded in the ownership of the respondents-plaintiffs in the revenue papers from the very beginning, by adverse possession and this controversy has not been addressed by either of the two Courts below.
8. In view of the above stated position, appeal is accepted. Judgment and decree of the first Appellate Court as also of the trial Court are set aside and the matter is remanded to the trial Court with a direction that it shall frame an additional issue, with regard to the plea of adverse possession of the appellants-defendants and decide the case afresh, after affording opportunity to the parties to lead evidence, with regard to the additional issue, directed to be framed. Parties shall appear before the trial Court on 18.10.2010. Record of the trial Court be sent back alongwith a copy of this judgment so as to reach well before the date fixed. Record of the first appellate Court be also sent back alongwith a copy of this judgment.
Appeal stands disposed of.
