Jharkhand High Court
Md. Uddin @ Mohammadin And Ors. vs Asibun Nissa And Ors. on 22 June, 2004
Equivalent citations: AIR2005JHAR1, [2004(3)JCR553(JHR)]
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiffs appellant stands directed against the impugned judgment and decree dated 10.07.1989 and 20.07.1989 respectively passed in Title, Appeal No. 42 of 1986 by Shri Uma Shankar, Ist Additional District Judge, Hazaribagh whereby and whereunder appeal was allowed and the judgment and decree passed in Title Suit No. 89 of 1982 by Munsif, Hazaribagh was set aside and the suit of the plaintiff was dismissed.
2. The plaintiffs-appellant have filed Title Suit No. 89 of 1982 for the declaration of their title and confirmation of possession and in the alternative for recovery of possession in respect of Schedule A and Schedule B property of the plaint. Schedule A of the plaint is in respect of Plot No. 1029 appertaining to Khata No. 66 having an area of 4 decimals and Schedule B is in respect of Plot No. 1028 appertaining to Khata No. 66 having an area of 13 decimals.
3. The case of the plaintiffs-appellant (hereinafter referred to as to the plaintiffs) in brief, is that Khata No. 66 of village Parana is the raiyati Khata recorded in the name of Sheikh Gaffar son of Sheikh Salamuddin in the cadastral Survey Records of Right. Sheikh Salamuddin had five sons, namely Sheikh Gaffar, Sahimuddin (original plaintiff), Salim, Sattar and Siddique. Sheikh Gaffar died issueless leaving behind his four brothers aforesaid, Siddique also died issueless. Thereafter, Salim and Sattar, left village Pararia for Raigarh entrusting all the properties including the lands of Khata No. 66 to their brother Salumuddin the plaintiff and the entire land of Khata No. 66 came in cultivating possession of the plaintiffs and the then landlord finding the title and possession of the plaintiffs in respect of the land of Khata No. 66 mutated his name and the plaintiff paid rent to the landlord and got rent receipt. Plot No. 1029 detailed in Schedule A of the plaint aforesaid was recorded in the Cadastral Survey Records of Right having house thereon and the plaintiff is living in the said house with his family members and thereafter, he extended his house over one decimal of land in Plot No. 1028 having his exit and entrance by door in Plot No. 1028 having an area of 13 decimals described in Schedule B of the plaint. The plaintiffs after the vesting of the estate applied for mutation of his name in respect of the land of Khata No. 66 before the Anchal Adhikari and having been satisfied with the title and possession of the plaintiff mutated him in respect of the land of Khata No. 66 and the plaintiff is paying rent to the State and getting rent receipts. As usual the plaintiff and his sons had grown rahar and matar in the remaining portion of Plot No. 1028 and the defendant and his sons started threatening them and a proceeding under Section 144 of the Code of Criminal Procedure was initiated between the plaintiff as Ist party and defendant as 2nd party and the defendant in his show cause has wrongly stated that the land of Schedule B was wrongly recorded under Khata No. 66 and it should have been recorded under Khata No. 107 and the Plot No. 1027 having an area of 7 decimals recorded in Khata No. 107 should have been recorded under Khata No. 66 as it was the land of Sheikh Gaffar and also stated that Plot No. 1029 was also wrongly recorded under Khata No. 66. It has also been stated in the show cause by the defendant that their was an agreement between Sk. Gaffar and Rahat Ali, the ancestor of the defendants in respect of Plot No. 1028 and 1027 in which it has been stated that these two plots were wrongly recorded in the cadastral Survey Records of Right. It is alleged that the alleged agreement is a forged and fabricated agreement. The further case of the plaintiff is that the entry in the Survey Records of Right is presumed to be correct and the ancestor of the defendant had never challenged the correctness of the said survey entry in respect of Plot Nos. 1029, 1028 and 1027. It is also alleged that Plot No. 1027 was parti land and people used the same for passage through that plot and the ancestor of the plaintiff had also opened a door in his house over Plot No. 1029 opening towards Plot No. 1027. The further case of the plaintiff is that he and his ancestors claimed the said plots as his raiyati land and has perfected his title in respect thereof by adverse possession also.
4. The case of the defendant-respondent (hereinafter referred to as the defendant), inter alia, is that Plot No. 1028 together with 1-1/2 decimals of Plot No. 1029 and the southern portion of Plot No. 1116 stand amalgamated and the same is Bari land of the defendant in his possession which is explicit from the map enclosed with the written statement and the total area of the enclosed block is about 16-1/2 decimals and it is in cultivating possession of the defendant since the time of his ancestors openly and adversely for several years beyond the statutory period and there are several trees thereon besides cluster of bamboos and north of the said amalgamated plot is situated Plot No. 1027 and part of Plot No. 1029 having the house and Bari of the plaintiff and it is false to say that the plaintiff has extended his house in or about one decimals of land in Plot No. 1028 and has his exit or entrance by door in Plot No. 1028. It is alleged that the house of the plaintiff on portion of Plot No. 1029 is his ancestral house and is in the same condition as it was before and about 1-1/2 years ago the plaintiff surreptitiously opened the door towards east in the portion of his house of Plot No. 1029 and on the intervention by the local Panchayat the said door was fenced and it was never used and the plaintiff has got his exit and entrance doors towards east and west in his house. The specific case of the defendant is that the land mistakenly numbered as Plot No. 1027 measuring 7 decimals actually belonged to and was in possession of Sk. Gaffar and it should have been included under Khata No. 66 in the cadastral Survey Records of Right in his name and likewise the land mistakenly numbered as Plot No. 1028 together with the southern portion of Plot No. 1029 was in possession of Rahat Ali, the ancestors of the defendant, at the time of the cadastral Survey Records of Right and it should have been recorded under Khata No. 107 in the Survey Records of Right in the name of Rahat Ali and when the said mistake was detected by the recorded tenants aforesaid of Khata No. 66 and Khata No. 107 though after the expiry of the period of limitation for correction of the entries of the Survey Records of Right they amicably agreed due to their relationship to put the record straight in the shape of a written agreement or ekrarnama dated 19.03.1919 whereby they had mutually agreed to maintain their respective possession over the respective parcel of lands without any dispute. It is alleged that Sk. Gaffar had small house on northern portion of Plot No. 1029 in his occupation and in his life time he had extended that house towards west within Plot No. 1027 and the said house is still in existence and the southern part of Plot No. 1029 stands amalgamated with the other lands of the defendants who are continuing in open and exclusive possession over the same for more than 50-60 years. There had been a demarcation case bearing No. 1 of 1981 and the report of the Anchal Amin also clarifies the mistake in numbering of the respective plots. Lastly it has been alleged that the agreement referred to above is genuine and it reflects the realities and has been all along accepted and acted upon by the parties to this suit and the boundaries as mentioned in the Survey Records of Right of the aforesaid two plots is correct which thereof states the wrong numbering of the aforesaid two plots. The plaintiff or his ancestors were never in possession of any inch of Plot No. 1028 amalgamated with 1-1/2 decimals of Plot No. 1029 and question of the plaintiff acquiring title by adverse possession is equally false.
5. In view of the pleadings of the parties the trial Court has framed the following issues for adjudication in this case:
(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff cause of action for the suit ?
(iii) Is the suit barred by limitation and adverse possession and also hit by waiver acquisance and estoppel ?
(iv) Has the plaintiff properly valued the suit ?
(v) Is the suit bad for non-joinder of necessary parties ?
(vi) Has the plaintiff right title and possession over Schedule A and B of the suit land 7
(vii) Whether the entries in Khatian in regard to Plot No. 1028 and 1029 are all correct and if so, to what extent ?
(viii) To what relief, if any, is the plaintiff entitled to ?
6. In view of the oral and documentary evidence on the record the learned trial Court while deciding issue Nos. (vi) and (vii) has held that the plaintiff has right, title, interest and possession over Plot Nos. 1029 and 1028 and defendant has no right, title interest and possession over the same and the claim of the defendant is fallacious imaginary and a cock and bull story and these issues were decided in favour of the plaintiff and finding the suit of the plaintiff maintainable it was decreed.
7. Being aggrieved by the judgment and decree of the trial Court the defendant preferred Title Appeal No. 42 of 1986 and the learned appellate Court on re-appraisal and re-application of the evidence on the record allowed the appeal and set aside the judgment and decree of the trial Court. It has been held by the appellate Court below that Ext. A, the agreement dated 19.03.1919 executed by Sk. Gaffar and Rahat Ali is a genuine document admissible in evidence and it cannot be treated as a deed of exchange and it merely acknowledges the possession of Sk. Gaffar and Rahat Ali over Plot Nos. 1027 and 1028 respectively and Ext. A fully supports the ease of the defendant. It has further been held that admittedly the house of the plaintiff stands on the northern portion of Plot No. 1029 and considering the boundaries of Plot Nos. 1027, 1029 and 1028 and other contiguous plots as described in the cadastral Survey Records of Right it has been held that the boundaries would prevail over Plot Nos. and it appears that Plot No. 1028 should have been numbered as Plot No. 1027 and Plot No. 1028 shown in the survey may belong to the ancestor of the defendant. It has also been held that the plaintiff has failed to prove his title and possession over the suit land except over 2-1/2 decimals of Plot No. 1029 and thus the title of the plaintiff over Plot No. 1028 and southern 1-1/2 decimals of Plot No. 1029 has been extinguished as the plaintiff is out of possession over the same for the last 50-60 years and thus the suit of the plaintiff is barred by law of limitation. So for the house of the plaintiff is concerned his title and possession over the same was never challenged and, therefore, he has got no cause of action for declaration of his title over this house standing over 2-1/2 decimals of Plot No. 1029.
8. This Court while admitting the appeal vide order dated 22.11.1989 has formulated the substantial question of law which runs thus:
"whether the Court below could have dismissed the suit on the basis of Ext. A which was an unregistered deed of exchange."
9. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the survey entry in respect of Plot No. 1029 and 1028 appertaining to Khata No. 66 in the name of Sk. Gaffar is correct and there is presumption of correctness attached with the said survey entry and the defendants have not taken any steps during the statutory period for its correction as claimed by them and the said survey entry has reached its finality and in this view of the matter Ext. A, the deed of exchange dated 19.03.1919 has no bearing at all in respect thereof and the learned appellate Court below has wrongly construed Ext. A in deciding the matter in controversy in favour of the defendant. It has also been submitted that Ext. A is in essence a deed of exchange and it is an unregistered document and thus inadmissible in evidence and the learned appellate Court below has committed an error of law treating Ext. A as a document acknowledging possession only and holding that the same was admissible in evidence but in fact it appears from Ext, A that it evidences the exchange of title between Sk. Gaffar and Rahat Ali in respect of Plot Nos. 1028 and 1027 besides acknowledging the possession of the parties in respect, thereof. Elucidating further it has been submitted that exchange is a mutual transfer of the ownership of one thing for the ownership of another and a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale and Section 54 of the Transfer of Property Act mandates that such a transfer of immoveable property of the value of Rs. 100/- and upwards can be made only by registered instrument and in the case of below of Rs. 100/- such transfer may be made either by a registered instrument or by delivery of the property and whether there is a document evidencing such transfer it must be registered under Section 17 of the Registration Act and the lower appellate Court below has misconstrued Ext. A in this case and thus the finding of the appellate Court below is erroneous. It has also been submitted that the plaintiff is admittedly in possession of Plot No. 1029 over which he has his house and the defendants do not at all claim Plot No. 1029 and Plot No. 1029 admittedly stands recorded in the Survey Records of Right in the name of the plaintiff and, therefore, an apparent error has been committed by the appellate Court below in allowing the appeal and setting aside the judgment of the trial Court dismissing the suit of the plaintiff. Thus the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the case of Ishwar Das Jain (dead) through LRs. v. Sohan Lal (dead) by LRs. (2000) 1 SCC 434.
10. In contra, it has been submitted by the learned counsel for the defendant supporting the impugned judgment that the learned appellate Court below is a final Court of facts and on the threadbare discussion of the evidence on the records it has come to the finding that Plot No. 1028 should have been numbered as Plot No. 1027 and Plot No. 1027 should have been numbered as Plot No. 1028 in view of the boundaries as mentioned in the Survey Records of Right and for that it has given cogent reasons and this establishes the proposition of law that boundaries shall prevail over plot Nos. and thus Plot No. 1028 belongs to the ancestor of the defendant. It has further been submitted that the learned appellate Court below in para 11 of the impugned judgment, has correctly approached Ext. A as not a document of exchange and it merely acknowledges the possession of Sk. Gaffar and Rahat Ali over Plot Nos. 1027 and 1028 respectively and for that cogent reasons have also been assigned by it. It has been submitted that exchange takes place between two persons in respect of their respective lands over which their title is undisputed and here in this case the title of Sk. Gaffar and Rahat Ali over Plot Nos. 1028 and 1027 respectively was in dispute and. Ext. A shows that Plot No. 1027 belongs to Sk. Gaffar and Plot No. 1028 belongs to Rahat Ali and they were in respective possession of the said plots and the entries in the Survey Records of Right were wrong in respect thereof and whereas, Ext. A merely acknowledges the possession of Sk. Gaffar and Rahat Ali over Plot Nos. 1027 and 1028 respectively and said Ext. A cannot be construed as a deed of exchange and thus Ext. A fully substantiates the case of the defendant regarding the matter in controversy. It has also been submitted that the defendant was in possession of 1-1/2 decimals of Plot No. 1029 for the last 50-60 years perfecting their title in respect thereof (sic) have their house on the remaining 2-1/2 decimals of land in the north portion of Plot No. 1029 and the appellate Court below in para 21 of its judgment has clearly elucidated the said fact and held that plaintiff has failed to prove his title and possession over the suit land except over 2-1/2 decimals of Plot No. 1029 and the title of the plaintiff over Plot No. 1028 and southern 1-1/2 decimals of Plot No. 1029 has been extinguished as he has been out of possession for the last 50-60 years. Therefore, there is no illegality in the impugned judgment. It has been contended that the question formulated as substantial question of law in this appeal cannot in no way be termed to be a question of law much less as substantial question of law and the question formulated in fact is a question of fact and the learned appellate Court below has correctly decided the nature of Ext. A on appreciation of the evidence on the record and in this view of the matter in the impugned judgment requires no interference.
11. There is no denying the fact that Khata No. 66 stands recorded in the name of Sk. Gaffar in the cadastral Survey Records of Right and it consists of several plots including Plot Nos. 1029 and 1028. There is admittedly the house of Sk. Gaffar in the north portion of Plot No. 1029 to an extent of 2-1/2 decimals and the area of Plot No. 1029 is said to be 4 decimals. Khata No. 107 stands recorded in the name of Rahat Ali in the cadastral Survey Records of Right and it also consists of several plots including Plot No. 1027. Dispute in this case is in respect of 1-1/2 decimals of southern portion of Plot No. 1029 and Plot No. 1028 but the plaintiff has sought for a declaration of his title in respect of entire Plot No. 1029 and Plot No. 1028 and for confirmation of possession and in the alternative for recovery of possession. The plaintiffs are the descendants of Sk. Gaffar whereas the defendants are the descendants of Rahat Ali. Ext. H is the survey map of village Parana and it appears from it that Plot No. 1028 is adjacent north of Plot No. 1027 and adjacent west of Plot No. 1029. The aforesaid Plot No. 1028 is adjacent east of Plot No. 1252 and adjacent north of Plot No. 1156. The basis for the claim of the plaintiff in respect of the suit property i.e. Plot Nos. 1029 and 1028 is the entry in respect thereof made in the cadastral Survey Records of Right. The defendants case is that the said survey entry is incorrect and Plot No. 1028 has been wrongly recorded in Khata No. 66 and similarly Plot No. 1027 has also been wrongly records in Khata No. 107 and the true state of affairs is that Plot No. 1027 was in possession of Sk. Gaffar and Plot No. 1028 was in possession of Rahat Ali and parties are in their respective possession in respect thereof and the dependant has amalgamated 1-1/2 decimals of the southern portion of Plot No. 1029 in his Plot No. 1028 for being a block and when the said error was noticed in the cadastral Survey Records of Right though after the expiry of the period of limitation of its correction Sk. Gaffar and Rahat Ali who were relatives having relationship between them entered into an agreement Ext. A in respect thereof on 10.03.1919 whereby possession of Sk. Gaffar was acknowledged on Plot No. 1027 and possession of Rahat Ali was acknowledged over Plot No. 1028. The learned appellate Court below on perusal of the survey map (Ext. H) of the said village has observed :
"that there is numbering of Plot numbers at the relevant place from south to north. In the northern side of Plot No. 1028 there is Plot No. 1027 and in the northern side of Plot No. 1027 there is Plot No, 1030. On eastern side of Plot No. 1027 and 1028 there is Plot No. 1029 and in usual course Plot No. 1028 should have been north of Plot No. 1027 and thereafter, there should be Plot No. 1030. Therefore, there is no doubt that are wrong numbering of plots."
The observation of the learned appellate Court below is correct and I see no reason to disagree with it. The cadastral Survey Records of Right of Khata No. 66 and Khata No. 107 are on the record which are Exts. 3 and G respectively and cadastral Survey Records of Right of Khata No. 98 appertaining to Plot No. 1250 is Ext. G/1. The boundaries of the aforesaid plots stand mentioned therein. It appear from Ext 3 that Plot No. 1028 is bounded in the north of the land of Md. Karim, south Rahat Ali, east is of Sk. Gaffar and west land of Bhuneshwar Prasad. Plot No. 1027 is bounded in the north having the land of Sah Bano, south rasta and west land of Gajadhar Prasad and others. Admittedly the house of Rahat Ali is in the extreme north of Plot No. 1029 and definitely not in the southern tip of Plot No. 1029 Plot No. 1030 is adjacent north of Plot No. 1029 recorded in fine name of Sah Bano, It further appears that on the northern boundary of Plot No. 1028 there is a land of Md. Karim as per the boundary given in the Survey Records of Right and Plot No. 1030 belongs to Md. Karim and, therefore, it appears that Plot No. 1028 was contiguous south of Plot No. 1030 whereas in the survey map (Ext. H) Plot No. 1027 has been shown contiguous north of Plot No. 1030. Rasta has been shown in the southern boundary of Plot No. 1027 but as per survey map there is no rasta on the southern boundary of Plot No. 1027. There is a Gair Mazarua rasta which bears Plot No. 1116 which is adjacent south of Plot No. 1028. In view of the facts aforesaid the boundary of Plot Nos. 1027 and 1028 as mentioned in the. Survey Records of Right does support the fact that Plot No. 1028 should have been numbered as Plot No. 1027 and Plot No. 1027 should have been numbered as Plot No. 1028 and it establishes the case of the defendant regarding the wrong numbering of Plot Nos. 1027 and 1028 in a cadastral Survey Records of Right. The learned appellate Court below has correctly approached the matter in respect thereof and here comes the relevancy of Ext. A, the agreement. The agreement/ekrarnama dated 19.03.1919 has been executed by Sk. Gaffer and Rahat AH jointly. Ext. A recites that Plot No. 1028 having an area of 13 decimals and 2 decimals out of Plot No. 1029 i.e. 15 decimal in all was in possession of Rahat Ali before the cadastral Survey Records of Right and Rahat Ali is continuing in possession over the said 15 decimals of land. It further recites that Plot No. 1027 having an area of 7 decimals was in possession of Sk. Gaffar prior to the cadastral survey and he is still continuing in possession over the same land the aforesaid plot have been wrongly recorded in the cadastral Survey Records of Right and to resolve the said dispute this document said to be a deed of exchange has been executed by them and they will remain to continue in possession over the plots in their respective possession. It further recites that there is a house on Plot No. 1027 constructed by Sk. Gaffar and the parties shall accordingly pay rent to the landlord and will get rent receipts in respect thereof. This document is an unregistered document. Now the question is as to whether this document i.e. Ext. A is a deed of exchange or merely an agreement acknowledging the possession of Sk. Gaffar on Plot No. 1027 and of Rahat Ali in respect of Plot No. 1028 besides 2 decimals of Plot No. 1029. The trial Court has construed this document as a document of exchange and due to its non- registration held it as inadmissible in evidence. The appellate Court below has construed this document as an agreement merely acknowledging the possession of Sk. Gaffar and Rahat Ali over Plot Nos. 1027 and 1028 besides 2 decimals of Plot No. 1029 respectively and this document cannot be treated as a deed of exchange and hence it is admissible in evidence being a genuine document. When the parties differ in their views about the meaning of their document and it affects their rights and obligations and in such a situation it falls upon the Court to settle these difference and such settlement depends upon the proper construction of the term of the said document. The purpose of construction is to discover the actual intention of the parties to the said document and the intention of the parties has to be ascertained from the language they have used coupled with the consideration of the surrounding circumstances and the object of the said document. It is the well established proposition of law that unless prohibited by stature, the Court can go behind the document to determine the nature of the transaction irrespective of the form of the document or the name or title given to it and the party cannot escape the consequences of law merely by describing a document in a particular form though in substance it may be different transaction and the name given by the parties is not conclusive to determine the real legal nature. In the case of C.I.T. Punjab v. Panipat W and G Mills, AIR 1976 SC 640, the Apex Court has thus observed :
"The Court in order to construe an agreement has to look to the substance or the essence of it rather than to its form. A party cannot escape the consequences of law merely by describing an agreement in a particular form though in essence and in substance it may be a different transaction. Under the circumstances, therefore, if Courts construe the agreement as a sort of a joint venture or a transaction like a partnership which has been given the form and appearance of a contract of agency, the law must have its course."
Exchange has been defined in Section 118 of the T.P. Act and when two persons mutually transfer the ownership of one thing for the ownership of another, the transaction is called an exchange. The transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. The transfer of ownership implies that the propriety rights pass in their full sense and absolutely to the parties to the exchange. Here in this case Rahat Ali claims to have his ownership and possession over Plot No. 1028 besides 2 decimals of Plot No. 1029 and on the other hand Sk. Gaffar claims his ownership and possession over Plot No. 1027. The occasion for execution of Ext. A has arisen only due to the fact that the respective survey entries in respect thereof has been wrongly made in the survey records of right. Therefore, by this document ownership of the respective parties is not being transferred nor any effect is given to in respect thereof. This document Ext. A only envisages and acknowledges the fact that Sk. Gaffar is in possession of Plot No. 1027 on which he has his own house and at the same time this document also equally envisages and acknowledges the fact that Plot No. 1028 besides 2 decimals of Plot No. 1029 is in possession of Rahat Ali. No exchange of ownership stands effected or transferred by this document. Furthermore in a deed of exchange consideration is mentioned of the property of which ownership is mutually transferred. This fact is conspicuously absent in Ext. A. The exchange also pre-supposes the fact of delivery of possession of the properties under the exchange to the parties to that exchange. These aspects are conspicuously absent in the deed (Ext. A). Therefore, on proper construction of this document it cannot be held that it is a deed of exchange. It is equally relevant to mention here that an exchange is a transaction by which a party acquires property in which he had no interest before and for a valid exchange there must be a physical delivery of the property to the parties and each parties to the exchange has the rights and is subject to the liabilities of a seller as to that which he gives and has also the rights and liabilities of a buyer as to that which he takes. Therefore, on proper construction of the document dated 10.03.1919 it cannot be termed as an exchange in the facts and circumstances of this case. The learned appellate Court below has rightly construed this document as an acknowledgments of the possession of Sk. Gaffar over Plot No. 1027 and at the same time it acknowledges the possession of Rahat Ali in respect of Plot No. 1028 besides 2 decimals of Plot No. 1029. Viewed thus I see no illegality in the finding of the learned Court below in respect thereof. The appellate Court below has rightly allowed the appeal and has set aside the impugned judgment of the trial Court as a result of which the suit of the plaintiff stands dismissed. The ratio of the case of Iswar Dass Jain (supra) relied upon by the appellant has no relevancy at all in this case in view of the fact that the finding arrived at by the appellate Court below is not based on inadmissible evidence or misreading of the evidence on the record.
12. While parting, it is equally relevant to mention here that the apprehension of the plaintiffs is not at all well founded that by virtue of the decree of the appellate Court he has also lost his house admittedly existing in the northern 2-1/2 decimals of Plot No. 1029, para 21 of the impugned judgment of appellate Court below is very clear and explicit in which it has been stated in the most clear and unequivocal terms that the plaintiff has failed to prove his title and possession over the suit land except over 2-1/2 decimals of Plot No. 1029 (emphasis exercised) and thus his title over Plot No. 1028 and southern 1-1/2 decimals of plots No. 1029 has been extinguished as he has been out of possession over the last 50-60 years and the suit is also barred by law of limitation.
13. Viewed thus there is no merit in this appeal and it fails. The impugned judgment of the appellate Court below is hereby affirmed. The appeal of the plaintiffs is hereby dismissed. There shall be no order as to costs in the facts and circumstances of this case.