BIMLA Vs. MOHD SALEEM

JUDGEMENT

(1.) This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 04.04.2001, passed by Additional Civil Judge (Senior Division), Roorkee, in Civil Appeal No.34 of 1998, whereby said court has dismissed the appeal and affirmed the judgment and decree dated 19.05.1998, passed by the trial court [1st Additional Civil Judge (Junior Division), Roorkee] in Original Suit No. 214 of 1989.

(2.) Heard learned counsel for the parties, and perused the lower court record.

(3.) Brief facts of the case are that the plaintiffs Mohd. Saleem and Fatima Begum filed a Suit No. 214 of 1989, pleading that plaintiff No.1 Mohd. Salim and defendants Iqbal Ahmad and Afzal Ahmad are Bhumidhars in possession of the property shown in Schedule A (of Khasra No. 353, situated in Village Manak Mazra) in the plaint. It is further pleaded that the property mentioned in Schedule B (of Khasra No. 352, situated in Village Manak Mazra) was also owned by plaintiff No.1 Mohd. Saleem and defendant No. 1 Iqbal Ahmad, which was sold to plaintiff No.2 Fatima Begum, vide sale deed dated 01.09.1989. However, another co-sharer Behroz Ali (in Khasra No. 352) sold his 1/4th share to defendant No. 1 and 2, vide registered sale deed dated 26.07.1989, but the rights, as co-bhumidhar in possession of the plaintiffs and defendants No. 6 and 7 remained undisturbed in Schedule B (Khasra No. 352). It is also pleaded by the plaintiffs that defendant No. 1 to 4 have no concern whatsoever with the property mentioned in Schedule A (Khasra No. 353). As to the property mentioned in Schedule B (Khasra No. 352), it is pleaded by the plaintiffs that these defendants have threatened to make exclusive possession over the part of land of Khasra No. 352 and they intend to raise construction. During the pendency of suit, amendment was made in the plaint that in the months of February-March, 1994, the defendants No. 1 to 4 have raised constructions over the property mentioned in Schedule C (which was part of Schedule A and B), violating the temporary injunction granted on 11.11.1989. As such, in the plaint, apart from perpetual prohibitory injunction, the plaintiff sought mandatory injunction for removal of construction allegedly raised by the defendants No. 1 to 4.