RAMZAN Vs. GAFFAR (DECEASED)

JUDGEMENT

(1.) This is a second appeal, which has been preferred by the plaintiff/appellant, challenging the concurrent judgments impugned, dated 26.05.2015 as rendered by Civil Judge (J.D.), Vikasnagar, District Dehradun in Original Suit No. 536 of 2007 'Shri Ramzan vs. Gaffar and Others', whereby, the suit of the plaintiff/appellant for grant of decree of permanent injunction has been dismissed, which later on, on a challenge being given in the civil appeal being Civil Appeal No. 34 of 2016 'Shri Ramzan vs. Gaffar and Others' has also been dismissed on 03.08.2019, thereby concurrently dismissing the suit, which was preferred by the plaintiff/appellant before the learned court below in relation to the property described at the foot of the plaint, which constituted to be a land lying in Khasra No. 56 having an area of 0.700 hectare situated in Mauja Matak Majri Pargana Pachwadoon, Tehsil Vikasnagar, District Dehradun. The boundaries of the property were more particularly described as to be, in the east land of Madan Pal, in the west-land of Gram Samaj and plaintiff, in the north- land of Haseena and plaintiff, in the south- Government canal.

(2.) In the relation to the aforesaid disputed property, the Suit, which was instituted by the plaintiff (appellant herein) on 31.07.2007 was for a grant of decree of permanent injunction as against the defendants, their agents and representatives, or any one claiming under them may be injuncted from forcefully interfering over the Khasra No. 56 (as referred above). Contending thereof that on 27.07.2007 the defendants/respondents have conspired to forcefully occupy the property, which otherwise is claimed by the plaintiff/respondent to be belonging to them in terms of the pleading raised in the Suit, the plaintiffs have claimed, that he had acquired the property by way of its succession having devolved upon him from his Late father Mr. Bhikha. It was further contended by the plaintiff/appellant that after the death of Late Bhikha the property in dispute lying in Khasra No. 56 having an area of 0.700 hectares stood recorded in his favour in the revenue records by way of succession. The case of the plaintiff/appellant was that the land in dispute was leased to his Later father Bhikha about 42 years back, and at the time of allotment of land it was having Khasra No. 48, which on conclusion of survey operation it was renumbered as Khasra No. 56. He has submitted that ever since then the plaintiff is in peaceful possession over the same and the title stands vested in him, as he stands recorded as sankramaniya bhumidhar over the disputed land in the revenue records. The cause to institute the Suit as per the plaintiff/appellant arose when on 27.07.2007 at about 8:00 AM, defendants and his allies attempted to forcefully occupy the same by digging foundation over the property, and when it was resisted by the plaintiff he was maltreated by the defendants.

(3.) The Suit was contested by the defendants/respondents and the written statement Paper No. 29A/1 was filed by the defendant nos. 3 to 5 on 30.05.2011. The contest by the defendant was raised on the ground that in fact there was no cause of action as such for the plaintiff/appellant to institute the Suit because the so called incident of 27.07.2007 has never chanced nor there was any attempt was made by the defendants to make any effort to forcefully occupy the so called property claimed by the plaintiff/appellant to be belonging to him. It was further contended that the Suit suffered from the vices of nonjoinder of necessary parties because in the south of the property in dispute the other co-tenure holder, who was the owner of Khasra No. 146 [1] having an area of 0.0200 hectares was a necessary party to have been impleaded as a party to the Suit and, since he has not been impleaded as party to the Suit, hence, the Suit suffered from the vices of non-joinder of necessary parties. Defendant no. 4 contended that he had purchased the property with its co-owner Sharafat Ali from its previous owner, i.e. defendant no. 3, vide registered sale deed dated 27.07.2007 and same was registered with the Sub-Registrar. Defendant no. 4 contended that defendant nos. 3 and 5 had been wrongly made as party to the Suit.