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2013 DIGILAW 68 (GAU)

Mumtaz Begum v. Mazaharul Hoque @ Mukul

2013-02-01

A.K.GOSWAMI

body2013
JUDGMENT Arup Kumar Goswami, J. 1. This appeal is directed against the judgment and decree, dated 04.04.2002, passed by the learned District Judge, Goalpara, in Title Appeal No. 1/94, affirming the judgment and decree, dated 28.08.1993, passed by the learned Munsiff No. 1, Goalpara, in Title Suit No. 51/87.. The appellant is the plaintiff No. 1 in the suit. The suit was filed by the plaintiff No. 1 as well as the Plaintiff Nos. 2 & 3, who were the minor sons of the plaintiff, being represented by the plaintiff No. 1, as their friend and guardian for right, title, interest and khas possession of the suit land measuring 1 katha 11 lechas. 2. The case set out in the plaint is that the suit land was recorded in the name of the husband of the plaintiff No. 1, namely, late Abdul Kashem, and after the demise of late Abdul Kashem, the plaintiff No. 1, along with her two minor children began to stay in the suit land. The defendant is a distant relative of the husband of the plaintiff No. 1 and he, being very poor, requested the plaintiff No. 1 to grant permission to him to stay in the suit land. 3. As there was no male member in the family of the plaintiff No. 1, she permitted the defendant to live in the suit land with a verbal understanding that he will vacate the land as and when demanded by the plaintiff No. 1. The plaintiff No. 1, finding it difficult to live in the suit land along with her two children, left for Goalpara town, requesting the defendant to look after the suit land. 4. In the year 1982, the plaintiff No. 1 demanded the defendant to leave the suit premises, whereupon pleading some difficulties experienced by him, the defendant prayed for some time to vacate. As even after lapse of two years, the defendant did not leave the premises, the plaintiff No. 1 again requested the defendant, who once again, prayed for some more time to vacate the suit land. The defendant did not keep his word and once again, on 08.05.1987, the plaintiff No. 1 asked the defendant to leave the suit land. This time, she met with a response from the defendant that he is not going to vacate the suit land. The defendant did not keep his word and once again, on 08.05.1987, the plaintiff No. 1 asked the defendant to leave the suit land. This time, she met with a response from the defendant that he is not going to vacate the suit land. Accordingly, plaintiff No. 1 having no alternative filed the suit for declaration of the plaintiffs' right, title and interest on the suit land, ejectment of the defendant from the suit land by demolishing the houses of the defendant, decree for permanent injunction restraining the defendant from entering into the suit land, decree for mesne profit @ 500/- per month for illegal use of the suit land by the defendant etc. 5. The defendant filed written statement contending that he was not a permissive possessor and that he, along with his father, had been continuously possessing the suit land since 1954 adversely to the knowledge of the plaintiff on the strength of an unregistered sale deed, executed by the late husband of the petitioner, Md. Abdul Kashem, who was the owner of the suit land, in favour of the father of the defendant, namely, Mubarak Hussain. 6. It is pleaded that Abdul Kashem had sold the suit land to the father of the defendant at a consideration of Rs. 148.50 by executing an unregistered sale deed and had delivered possession of the suit land to him and thereafter, Mubarak Hussain constructed dwelling houses in the suit land in the year 1954 itself and started living in the suit land with his family members, consisting of his wife, namely, Mazida Khatun, three sons, namely, Mazaharul Islam (the defendant), Mazedul Islam and Bagbul Islam and three daughters, namely, Mukshida Begum, Masuda Begum and Saleha Khatun, till his death on 05.08.1980. 7. It is pleaded that as Mubarak Hussain possessed the suit land continuously for a period of 34 years to the knowledge of the plaintiffs and their predecessors- in interest on the strength of the unregistered sale deed, he had acquired valid title to the suit land and on his death, his heirs inherited the suit land. Plea is also taken that the suit was not maintainable for not impleading the other legal heirs of late Mubarak Hussain. 8. The learned trial Court framed the following issues:-- 1. Whether there is a cause of action for the plaintiffs suit? 2. Plea is also taken that the suit was not maintainable for not impleading the other legal heirs of late Mubarak Hussain. 8. The learned trial Court framed the following issues:-- 1. Whether there is a cause of action for the plaintiffs suit? 2. Whether the suit is bad for non-joinder of necessary parties?? 3. Whether the suit is barred by the law of limitation? 4. Whether the defendant occupied the S/L on permission of the plaintiff No. 1 with the condition to vacate the same to plaintiff as and when necessary? 5. Whether the defendant along with his father has continuously been possessing the S/L since 1954 adversely to the knowledge of the plaintiff? 6. Whether Md. Kashem, the predecessor in interest of plaintiffs during his life time excited an unregistered Sale deed in favour of Mubarak Hussain, the father of defendant and gave delivery of possession? 7. Whether the plaintiffs have got right, title and interest over the suit land? 8. Whether the plaintiffs are entitled to get khas possession over the suit land? 9. Whether the plaintiffs are entitled to get the perpetual injunction as prayed? 10. Whether the plaintiffs are entitled to get mesne profit as prayed? 11. To what other relief the parties are entitled under the law and equity? 9. During trial, the plaintiff No. 1 examined herself as P.W.-1 and two other witnesses. The defendant examined himself as D.W.-1 and also examined another witness. Defendant had exhibited the unregistered sale deed, dated 16.02.1954, as Ext.-"Ka" and four numbers of revenue receipts as Exts-"Kha (1) to Kha (4)". 10. The learned trial Court decided issue No. 1 in favour of the plaintiffs. Issue Nos. 2, 3, 4, 5, 7, 8, 9, 10 and 11 were decided against the plaintiffs. The issue No. 6 was also decided in favour of the plaintiffs. While deciding issue No. 6, the learned trial Court recorded a finding that the unregistered sale deed, dated 16.02.1954 (Ext.-"Ka") is not a valid document, the same having not been registered as required under the law and that the same can not even be utilized for collateral purposes as the signature marked as Ext.-"Ka(2)", which is the disputed signature of Abdul Kashem, apparently appeared as "Abdo Kasem". Accordingly, the learned trial Court also held that it can not be accepted that delivery of possession of the suit land was ever done on the strength of such a document However, in view of the findings recorded in issue Nos. 2, 3, 4, 5, 7, 8, 9, 10 and 11, the suit was dismissed vide judgment, dated 28.09.1987, holding that defendant had been in physical possession of the suit land adversely to the knowledge of the plaintiffs for not less than 15 years. 11. Title appeal being T.A. No. 1/1994 also came to be dismissed by the learned District Judge, Goalpara, vide his judgment, dated 04.04.2002. The defendant did not appear in the appeal to contest the case. 12. On 20.09.2002, this second appeal was admitted on the following substantial questions of law:-- 1) Whether both the courts below had rightly appreciated the documentary evidence like the unregistered sale deed, in the case in hand executed by the vendor in favour of the Respondent while passing the impugned judgment Decree or not? 2) Whether the findings of the courts below with regard to the long possession of the defendant/Respondent in the suit premises are based on evidence or not? 3) Whether the First appellate court had followed the provisions of law laid down under Order 41 Rule 31 CPC while passing the impugned Judgment or not? 13. I have heard Mr. S. Chauhan, learned Counsel, appearing for the appellant as well as Mr. P.K. Kalita, learned Counsel for the respondent. I have also perused the records of the case. 14. Mr. Chauhan submits that as had been noted by the learned lower appellate Court, the fate of the suit depended on the issue Nos. 4 & 5. Learned Counsel submits that there is no dispute that the husband of the appellant is the owner of the suit land and the purported sale made by him by an unregistered sale deed, (Ext.-'Ka") has been disbelieved by the learned trial Court. Mr. Chauhan submits that there is no pleading with regard to adverse possession by the defendant in the written statement and the entire case of the defendant rested on the alleged unregistered sale deed. Mr. Chauhan submits that there is no pleading with regard to adverse possession by the defendant in the written statement and the entire case of the defendant rested on the alleged unregistered sale deed. The learned Courts below having held that Ext.-'Ka" is not a valid document and that no delivery of possession had passed on to the defendant on the basis of such a document, the learned Courts below recorded a perverse finding that the defendant had been adversely possessing the suit land to the knowledge of the plaintiffs for not less than 15 years. The learned Counsel also submits that as the defendant had taken a plea of purchase of the suit land, he is precluded from setting up an inconsistent plea of adverse possession. The learned Counsel relies on the following judgments in support of his submissions: i) AIR 1999 Delhi 281 : Smti Rama Kanta Jain v. Ms. Jain & Ors. ii) (2011) 13 SCC 226 : G. Krishnareddy v. Sajjaappa (dead) by L.Rs. & Anr. iii) (1996) 1 SCC 639 : Mohan Lal (deceased) through his L.Rs. Kachru & Ors. v. Mirza Abdul Gaffar & Anr. iv) AIR 1995 SC 895 : Annasaheb Bapusaheb Patil & Ors. v. Balwant @ Balasaheb Babusaheb Patil (dead) by L.Rs. & heirs etc. v) AIR 1996 SC 869 : Dr. Mahesh Chand Sharma v. Smti Raj Kumari Sharma & Ors. vi) (2009) 13 SCC 229 : L.N. Aswathama & Anr. v. P. Prakash. 15. Mr. P.K. Kalita, learned Counsel appearing for the respondent, submits that both the Courts below had concurrently held that the possession of the defendant has become adverse to the interest of the plaintiffs for more than 15 years and the said finding of fact is based on evidence on record and in this second appeal, no interference is called for with regard to the said finding of fact. It is contended by him that it is an established proposition of land that the plaintiff must prove his case and in the instant case, the plaintiffs had made contradictory statements even in the plaint, more particularly, at paragraphs 5 and 7 thereof. The plaintiffs miserably foiled to prove that the defendant was in possession of the suit land in his capacity as a permissive occupier and there are inherent inconsistencies in the evidence of the witnesses examined by the plaintiffs. The plaintiffs miserably foiled to prove that the defendant was in possession of the suit land in his capacity as a permissive occupier and there are inherent inconsistencies in the evidence of the witnesses examined by the plaintiffs. It is also submitted by him that it is permissible for the defendant to take contradictory pleas in the written statement and therefore, the contention of Mr. Chauhan that it is impermissible for the defendant to set up a plea of adverse possession after taking a stand of purchase, is wholly not correct. Apart from paragraph 17 of L.N. Aswathama (supra), upon which reliance was placed also by Mr. Chauhan, the learned Counsel relies on paragraph 18 thereof as well as on (2007) 6 SCC 59 : P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. 16. It is settled law that mere possession, even if it is true, for any number of years will not clothe a person in enjoyment of the property with the title by adverse possession. Adverse possession, in a sense, is based on the presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. Plea of adverse possession is not a pure question of law, but a blended one of fact and law. A person who claims adverse possession must show: (a) on what date he came into possession, (b) what was the nature of possession, (c) whether the factum of possession was known to the other party, (d) how long has his possession continued, and (e) his possession was open and undisturbed. In order to succeed a person pleading adverse possession must clearly plead and establish all facts necessary to establish his adverse possession. In terms of Article 65 of the Limitation Act, 1963, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. Therefore, there must be intention to dispossess. Animus possidendi is one of the ingredients of adverse possession. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario is necessary to constitute adverse possession. 17. The evidence of P.W.-1 was recorded on 07.08.1991. Therefore, there must be intention to dispossess. Animus possidendi is one of the ingredients of adverse possession. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario is necessary to constitute adverse possession. 17. The evidence of P.W.-1 was recorded on 07.08.1991. In her evidence, P.W.-1 had stated that her husband did not sell the said property to anyone. It is deposed by her that after the death of her husband, after residing in the suit land for some time, she came to Goalpara after entrusting the defendant to look after the suit land. In cross-examination, she has stated that her husband died about 18 years back, meaning thereby on or about in the year 1973. She also deposed that Mubarak had started living in the suit land along with his family after taking the same from her husband. She denied that her husband had allowed Mubarak to reside in the suit land as he had purchased the same from her husband. P.W.-2 deposed in cross-examination that the defendant and his family were residing in the suit land for 14/15 years and Mubarak died about 10/12 years back. His evidence was recorded on 28.04.1992 and cross-examination on 06.07.1992. P.W.-3, amongst others, deposed to the effect that the defendant was allowed to reside in the suit premises. 18. D.W.-1 had deposed that his father, Mubarak Hussain had purchased the suit land in the year 1954 by an unregistered sale deed and since then, was in possession of the said land. His father died on 05.08.1980 and after the death of his father, he and the other heirs of late Mubarak Hussain were in possession of the suit land as his legal representatives. D.W.-2 is the brother of Abdul Kashem and he deposed that Abdul Kashem had sold the suit land and he had signed as a witness in Ext.-"Ka". He also deposed that Mubarak Hussain died in the year 1980 and that Abdul Kashem died about 15/16 years back. His evidence was recorded on 14.07.1993. 19. In Annasaheb Bapusaheb Patil (supra), the Apex Court stated as follows:-- 13. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date the defendant's interest becomes adverse to the plaintiff. 19. In Annasaheb Bapusaheb Patil (supra), the Apex Court stated as follows:-- 13. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 14. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title cannot divest another of that title by pretending that he had no title at all. 20. In Dr. Mahesh Chand Sharma (supra), the Supreme Court emphasized that a person pleading adverse possession has no equities in his favour and that as he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. 21. In P.T. Munichikkanna Reddy (supra), the Apex Court referred to Karnataka Board of Wakf v. Government of India, reported in (2004) 10 SCC 779 as well as Mohan Lal (supra) and stated as follows:-- 33. 21. In P.T. Munichikkanna Reddy (supra), the Apex Court referred to Karnataka Board of Wakf v. Government of India, reported in (2004) 10 SCC 779 as well as Mohan Lal (supra) and stated as follows:-- 33. In Karnataka Wakf Board, it is stated: 12. A plaintiff, filing a title suit should be very clear about the origin of title over the property. He, must specifically plead it. In P. periasami v. P. Periathambi this Court ruled that: Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: '4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant. 22. In L.N. Aswathama (supra), the Apex Court stated as follows:-- 17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi, Md. Mohammad Ali v. Jagadish Kalita and P.T. Munichikkanna Reddy v. Revamma.). 18. We, are however of the view that the decision in Mohan Lal relied on by the plaintiffs is inapplicable, as the defendant therein had pleaded that he was in possession, having obtained in part-performance of a sale agreement. As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in such possession, there was no adverse possession. This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot of from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more man 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of the defendant provided he is able to establish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected. 23. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected. 23. In G. Krishnareddy (supra), the Apex Court had approved the decision of the High Court to the effect that since the purchaser had taken the stand that by purchasing the said land under a valid sale deed he had been enjoying the cultivation and possession in his own right as owner thereof, therefore, he is precluded from setting up the inconsistent plea of adverse possession either as against the State or the grantee as follows:-- 13. It is clear from the aforesaid position that in order to overcome the aforesaid difficulties the appellant took up the plea of adverse possession by way of defence. The predecessor-in-interest of the appellant claimed title over the said land by virtue of purchase and at no stage he had put up any hostile claim to the property. The plea was of ownership by right of purchase and therefore a lawful right to enjoy the property. The learned Single Judge while allowing the writ petition filed by the respondent has made reference to the aforesaid position and held that the plea of adverse possession was not available to the predecessor-in-interest of the appellant in law and in view of such legal position the authorities below erred in accepting the plea of adverse possession in respect of the granted land. There appears to be justification in the findings of the High Court. 24. In Smti Rama Kanta Jain (supra), the Delhi High Court, following the Apex Court judgments, had stated that where in a suit for possession of property, the defendant claimed himself to be the owner in possession over disputed property on the ground that he had purchased the same from the plaintiff, the alternative plea by the defendant that he had perfected his title by adverse possession cannot be allowed. 25. 25. The learned lower Appellate Court held that as the plaintiffs failed to prove by adducing evidence in which year or month the defendant was allowed to reside in the suit land and the materials on record have also established that the defendant's father also used to reside in the suit land for more than 12 years before institution of the suit, claiming the suit land as his own, no interference was called for with the findings of the learned trial Court. 26. In the written statement, at paragraph 2 and paragraph 11, the defendant stated as follows:-- 2. That this suit is barred by limitation. The defendant is not a permissive possessor. The defendant along with his father has continuously been possessing the suit land since 1954 adversely to the knowledge of the plaintiffs on the strength of an unregistered sale deed executed by Abdul Kashem, the then owner of the suit land, in favour of Mubarak Hussain, the father of the defendant. ................................................................... 11. That the case in brief is that the predecessor of the plaintiff late Abdul Kashem was the owner of the suit land. Said Abdul Kashem in the year 1954 sold the suit land to Mubarak Hussain, the father of the defendant at a consideration of Rs. 148.50 (one hundred forty eight and fifty paise) and executed an unregistered sale deed in favour of Mubarak Hussain and delivered him possession of the suit land. Mubarak Hussain after obtaining possession constructed dwelling houses in the suit land in 1954 and began to occupy the same continuously along with his family members consisting of his wife Mazida Khatun, three sons namely Mazaharul Islam the defendant, Mazedul Islam and Bagbul Islam and three daughter namely Mukshida Begam, Masuda Begum and Saleha Khatun till 5/8/80 when he died leaving his above heirs. Said Mubarak Hussain possessed the suit land continuously for a period of 34 years to the knowledge of the plaintiffs and their predecessor in interest on the strength of aforesaid unregistered sale deed and thereby he acquired valid title to the suit land and after the death of Mubarak Hussain the defendant and the aforesaid heirs inherited the suit land and they are continuously occupying the suit land as before. The title acquired by Mubarak Hussain to the suit land has devolved to his aforesaid heirs who have also acquired valid title to the suit land. The title acquired by Mubarak Hussain to the suit land has devolved to his aforesaid heirs who have also acquired valid title to the suit land. The plaintiffs have no title to the suit land and hence they have no right to institute this suit. 27. From the aforesaid, it is crystal clear that the defendant had taken the plea that on the strength of the unregistered sale deed, executed in the year 1954, they came into possession of the suit land and thereby acquired valid title and that since 1954, had been in possession in the suit land adversely to the knowledge of the plaintiffs. As has been held in P.T. Munichikkanna Reddy (supra), the said plea of title and adverse possession are mutually inconsistent. It is also noticed that the plea regarding title by purchase was not renounced by the defendant. In the facts of the case, it cannot be said that the pleas set forth by the defendant are not inconsistent pleas but alternative pleas available on the same facts which was the case in L.N. Aswathama (supra). 28. Both the Courts below, as has been noticed earlier, had held that Ext.-"Ka" was not a valid sale deed and that delivery of possession to the defendant was never done on the strength of such a document. It is also admitted position that the defendant did not dispute that late Abdul Kashem was the owner of the suit land. In law, possession follows title. In view of the fact that the plea of purchase was disbelieved and negated by the Courts below, there is no manner of doubt that the plaintiffs will have title to the suit property and will be entitled to decree for possession, unless their right to the suit property was extinguished by reason of the defendant being in adverse possession for a period of 12 years prior to the suit. The learned Courts below gave much emphasize on physical possession of the suit land by the defendant and his family. 29. From the evidence of the plaintiffs' witnesses, it would appear that father of the defendant Mubarak was also allowed to live in the suit land by the husband of the appellant This was not the pleaded version in the plaint Mr. Kalita may be right that there is some inconsistency as to when the defendant came to occupy the suit land. Kalita may be right that there is some inconsistency as to when the defendant came to occupy the suit land. However, in the facts and circumstances of the case, the same may not be of much consequence. Even if the father of the defendant along with his family was also allowed to live in the suit land by the late husband of the plaintiff No. 1, it appears that after the death of her husband, the plaintiff No. 1 permitted the defendant to stay in the suit land and that she also entrusted him to look after the suit land. The claim of the defendant is founded on the unregistered sale deed Ext.-"Ka" and there is no other evidence regarding hostile possession. The learned Court below dismissed the suit of the plaintiffs only because the defendant was found to be in possession of the suit land for not less than 15 years, perversely holding the same to be adversely to the knowledge of the plaintiffs. 30. Though in view of the pleadings and prayer made in the plaint for decree for mesne profit of Rs. 500/- per month, issue No. 10 was framed to that effect, no evidence was led by the plaintiffs in that regard and P.W. 1 only stated that the case was filed only to recover possession from the defendant after evicting him. During the course of argument also, no argument was advanced by Mr. Chouhan with regard to prayer for decree for mesne profit. 31. In view of the discussions made above, the second appeal is allowed The impugned judgments and decrees of the learned Courts below are set aside. Except the prayer for decree for mesne profit, the suit is decreed as prayed for. Send back the LCRs.