Judgment:
Panna Chand Jain, J.
1. This civil second appeal is directed against the judgment and decree dated 23rd April, 1982, passed by the learned Addl, District Judge, Deeg(Bharatpur) in Civil Regular Appeal No. 31 of 1981, confirming the judgment dated 13th August, 1981, passed by the learned Munsiff and Judicial Magistrate, Deeg in Civil Suit No. 110 of 1979.
2. Briefly stated the facts of the case are that the plaintiffs-respondents filed a suit against the defendant-appellant claiming that they had possession over the disputed land described in the site-plan and annexed with the plaint. It was submitted that the defendant-appellant had no right over the disputed land, but he made an encroachment upon the land. The plaintiff's, therefore, filed a suit for possession against the defendant on the basis of the previous possession and subsequent dispossession by the defendants. The suit was contested by the defendant on the ground that it was his ancestral property and he was enjoying the possession of the property peacefully. The learned trial Court decreed the suit vide judgment and decree dated 13th August. 1981 holding that the plaintiffs were in possession of property and were dispossessed by the defendant. Against the judgment and decree the trial Court, the defendant filed an appeal. The first appellate Court confirmed the judgment and decree of the trial Court vide its judgment and decree dated 23rd April, 1982. Aggrieved by the judgment and decree passed by the Appellate Court, this second appeal has been preferred by the defendant. At the time of admission, the following substantial questions of law were framed:
(1) Whether without filing the suit for declaration the decree for possession can be granted?
(2) Whether on the basis of the site-plan or by showing the Chabutra in straight line the finding can be given in respect of ownership?
(3) Whether without establishing the possession which is peaceful and continuing one without interruption, decree for possessory title can be granted?
3. There is a concurrent finding arrived at by both the trial Court and the first appellate Court with regard to the possession of the plaintiff's and their subsequent dispossession by the defendant. The finding is based on the evidence of the witnesses produced by the plaintiff, namely Chandra Sen (PW/1), Babu (PW/2), Dauli Ram (PW/3) and Har Prasad (PW/4). The finding with regard to possession and subsequent dispossession is a finding of fact and, as such, it cannot be assailed in the second appeal.
4. The learned Counsel for the defendant-appellant submitted that in the absence of prayer for declaration a decree for possession could not have been granted by the trial Court. The learned Counsel also addressed his arguments on the other two questions framed by this Court, which have been referred to above. Controverting his arguments, Shri R.K. Mathur, learned Counsel for the plaintiffs-respondents, contended that the learned lower Courts after considering the entire evidence gave a finding that the property in dispute is in the line of the property of the plaintiff. It was also held by the Court that prior to this possession of the defendant, the plaintiffs were in possession of the suit property peacefully. I am of the view that the submissions made by Shri Mathur, learned Counsel for the defendant-respondent') are correct.
5. As regards the question as to whether a suit lies or not, without a prayer for declaration, the submssion of Shri R.K. Mathur that declaration is needed with regard to the character or status, but for seeking possession no such declaration is needed and the suit lies on the basis of previous possession, and subsequent dispossession. To substantiate his arguments, he relied upon Shrinath Singh v. Kali Bhawani Prasad : AIR1972Pat138 and Debi Singh v. Blum Singh, : AIR1971Delhi316 : In Shrinath's case it has been observed by the Patna High Court that possession is the notice of title of the person to the whole world under Section 3 of the Transfer of Property Act. Therefore, the previous possession of a person in respect of the property has got to be protected in courts of law against the whole world except the true owner unless the remedy of the true owner is barred by limitation. In Debi Singh's case it was laid down that a person must be in possession and a person entitled to get possession must prove that he was in possession before the alleged trespasser got into possession. The lower Courts have followed the same principle and decreed the suit. There is no infirmity in the judgment of the learned Munsiff and that of the learned first appellate Court.
6. There is, thus, no force in the appeal and the same is dismissed without costs.