JUDGMENT
Vinod K. Sharma, J.
1. Present appeal has been filed against the judgments and decree passed by the learned courts below vide which suit filed by the plaintiff-respondent for possession has been ordered to be decreed.
2. Suit for possession was filed by the plaintiff-respondent on the plea that in pursuance to purchase the plaintiff-respondent has become owner of the property and therefore, he is entitled to possession of the property in possession of the defendant-appellants. The suit was contested by the appellant-defendants preliminary on the ground that he has become owner of the property by way of adverse possession and therefore, the suit for possession against them was not competent.
3. Learned courts below have recorded a concurrent finding of fact that the plaintiff being brother of the owner was licencee qua the property in dispute and furthermore that the defendants have failed to show their uninterrupted possession over the property so as to claim ownership by way of adverse possession.
4. Learned Counsel appearing on behalf of the appellants has challenged the finding recorded by the learned courts below preliminary on the ground that they are in possession of the property since 1971 after their return from foreign country. It is the case of the appellants that as they had spent money and were put in possession of the property in the year 1979 as owners thereof their possession has to be treated as adverse since the year 1971 and thus, the learned courts below were wrong in coming to the conclusion that their possession did not mature into ownership by way of adverse possession.
4.1. The contention of the learned Counsel for the appellants is without any force. It is not in dispute that the predecessor-in-interest of the appellant himself filed a suit claiming ownership of the property on the plea that the property was purchased by his brother on his behalf and the transaction, in fact, was benami transaction. Though the said suit was decreed, however, in appeal the defendant-appellants chose to withdraw the suit. In the said suit also it was nowhere claimed by the defendant-appellants that they have become owners by adverse possession but ownership rights were claimed as owner thereof. The appellants had raised a claim to the ownership of the suit property in the year 1979 when he filed the suit. Even if the benefit of this is given to the appellants from the filing of the suit it transpired that on the date of filing of the suit 12 years have not elapsed. Therefore, the courts below were right in coming to the conclusion that the defendants have failed to prove uninterrupted adverse possession against the true owner to claim ownership of the property by adverse possession. Concurrent findings of fact recorded by the courts below are not open to challenge in regular second appeal.
4.2 Learned Counsel for the appellants, thereafter, argued that the learned courts below were wrong in ordering the payment of mesne profits for use and occupation. The contention of the learned Counsel appearing for the appellants is that this finding per se cannot be sustained in view of the facts proved on record. However, we need not go into this fact as the learned Counsel appearing on behalf of Pritam Singh has fairly stated that they-would not be claiming mesne profits.
5. Learned Counsel for the respondents further states that the appellant may be allowed to remain in possession of the property for a period of 3 months. Their request is allowed subject to his filing an affidavit in court within one month mat they will hand over the vacant possession of the property on or before 4.10.2007.
With the modification mentioned above appeal is dismissed.