HAKIM PURSHOTAM LAL Vs. GOVERDHAN LAL

JUDGEMENT

(1.) This second appeal has been brought against judgment and decree dated October 13, 1972, of Additional District Judge by which he dismissed the appeal filed against judgment and decree dated February 15, 1967, of Shri RK. Singhal, Sub-Judge 1st Class, Delhi dismissing the suit brought by Hakim Purshotam Lal-appellant (since deceased) for possession in respect of one kothari located in building bearing municipal No. XII/28-36 (New) and 16-50 (Old), situated in Main Bazar, Subzi Mandi, Delhi, depicted in red colour in the plan filed alongwith the plaint.

(2.) This kothari was attached by the Sub-Divisional Magistrate in proceedings under Section 145 of the Code of Criminal Procedure. The question as to which of the parties was in possession of the kothari was referred to the civil court for report and Shri RK Singbal, Sub-Judge, had after recording the evidence given a report dated April 28, 1965. to the effect that at the relevant time defendant-respondent No. I Goverdhan Lal has been in possession of the said kothuri. Hakim Purshotam Lal had insituted initially the suit on May 18,1965, for declaration to the effect that the plaintiff was in possession of the kothari in question as a tenant under the Custodian Evacuee Property and for injunction restraining the defendant from taking possession of that kothari in pursuance of the order which might be passed in his favour by the Sub Divisional Magistrate under Section 145 of the Code of Criminal Procedure, and the Sub-Divisional Magistrate be directed to give possession of the kothari to the plaintiff-appellant. It so happened that possession of the said kothari was delivered to respondent No. I by the Sub-Divisional Magistrate on May 31, 1965. The plaintiff-appellant thereafter amended the suit inorder to seek the relief of possession of the said kothari. I may mention that during the pendency of the appeal the sale appellant-Hakim Purshotam Lal had died and C.M. No. 742/88 was moved for bringing on record the legal representatives of the deceased- appellant which application was not opposed and I had allowed the said application and directed substitution of legal heirs of the deceased appellant. The amended cause title has been filed during the course of agreements in the appeal on merits.

(3.) Jamnu Mal was joined as one of the defendants in the suit. He has also died during the pendency of the appeal and his legal representatives <PG>140</PG> have been already substituted in his place. At any rate. Jamnu Mal in the written statement did not claim any rights in the properly in question.