TILAKRAM BANI Vs. DEBIRAM BANI

JUDGEMENT

(1.) This second appeal preferred by the appellant/defendant No.3 was admitted for hearing by formulating the following substantial question of law:-? "Whether both the Courts below are justified in granting permanent injunction without demarcation of the land in question " [For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

(2.) The plaintiff and defendant No.3 both are brothers. The plaintiff filed a simpliciter suit for permanent injunction stating inter-?alia that in the suit land owned by him shown in map annexed with the plaint admeasuring 17"x127", the defendants are encroaching by making construction, as such, the defendants be restrained from interfering with his lawful possession, which was opposed by the defendants by filing written statement stating inter-?alia that defendant No.3 is in exclusive possession of the suit land and as such, the plaintiff is not entitled for permanent injunction.

(3.) The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 21.7.2005, held that the plaintiff is in lawful possession of the suit land and the defendants are restrained from interfering with his lawful possession, against which, only defendant No.3 preferred first appeal. The first appellate Court affirmed the judgment and decree of the trial Court by dismissing the appeal. Being aggrieved and dissatisfied with the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been preferred by the appellant/defendant No.3, in which substantial question of law has been formulated and set-?out in the opening paragraph of this judgment. During pendency of the instant second appeal, defendant No.3 died and his legal representatives were brought on record.