P.L.K.SHARMA Vs. S.BALA

JUDGEMENT

(1.) This first appeal has been directed against the order dated 14.10.1988 passed by VIIIth Additional District Judge, Bulandshahr in Original Suit No. 763 of 1988 whereunder the application 7/C moved under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure for issuing interim injunction has been rejected and ex parte injunction granted earlier has been vacated as well as the possession over the property has been directed to be restored to defendant No. 1. We have heard the learned Counsel for the parties on this first appeal and perused the record.

(2.) A perusal of the record would go to show that in Original Suit No. 763 of 1988 plaintiff Pandit Lal Kishan Sharma moved an application 7/C under Order XXXIX, Rules 1 and 2 of Civil Procedure Code with the relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the property shown in the plaint map and from withdrawing the amount of the F.D.Rs. and N.S.Cs. and from operating the Bank locker.

(3.) The plaintiff instituted the above suit for declaration with this allegation that the plaintiff was the owner in possession of the property in dispute and defendant No. 1 had got no concern with the same. The plaintiff stated in his affidavit that he purchased the property shown by letters Aa and Ba in the plaint map in the year 1948 from his own money and he started to live separately from his father in the year 1946. The plaintiff constructed a Kothi in the property shown by letters 'Ba' in the year 1958 and started to live in that house alongwith his family. The plaintiff also obtained a declaration under section 143 of U.P.Z.A. & L.R. Act regarding the property Aa and Ba. The plaintiff got four sons and four daughters and all his four sons started to live out since 1975 in connection with their business. His eldest daughter was got married in the year 1961 and younger Pushpa in the year 1976. The defendant No. 1 was married with defendant No. 2 on 9.2.1988 and all expenses of the marriage of defendant No. 1 was borne by the plaintiff. A dacoity took place in his house in the year 1975, in which the plaintiff sustained serious injuries, as a result of which his condition started to deteriorate. The wife of the plaintiff was heart patient and all his four sons were already residing out of station. The defendant No. 1 daughter of plaintiff passed her medical course in the year 1978 and started to live with plaintiff. The plaintiff was having complete reliance on defendant No. 1 and he became seriously ill in the year 1980 and defendant No. 1 served him during his illness. The plaintiff thought that defendant No. 1 was doing all works for betterment of the family and she gave the impression that she would not marry and she would serve her parents as well as villagers. The plaintiff was also the patient of cancer and his operation of cancer took place in the year 1983, in which defendant No. 1 served him and the plaintiff started to have much reliance on her. The wife of the plaintiff died on 13.1.1985 and thereafter the plaintiff and his daughter defendant No. 1 started to live in his house. The defendant No. 1 expressed her desire to start a charitable hospital in the name of her mother Smt. Bhagwati Devi wife of plaintiff and the plaintiff executed a benami sale-deed in the name of defendant No. 1 on 25.2.1985 Without any consideration and the hospital was inaugurated by Dr. Farah Usmani wife of Javed Usmani, the then District Magistrate, Bulandshahr on 20.4.1986. The plaintiff also purchased one air-conditioned Car No. UHP-3368 for a consideration of Rs. 1,12,000/- in the name of defendant No. 1 and the entire consideration was paid by the plaintiff and the name of defendant No. 1 was benami. All the original documents were always in possession of plaintiff. In the year 1987 defendant No. 1 started to harass the plaintiff and expressed her desire to marry, as a result of which her marriage was solemnized with defendant No. 2 on 9.2.1988. After their marriage the defendants started to express their desire to sell movable and immovable properties of the plaintiff purchased by him in the name of defendant No. 1. The plaintiff also obtained a Bank locker in Oriental Bank of Commerce in the name of defendant No. 1 as benami as well as two F.D.Rs. for a sum of Rs. 14,500/- and Rs. 10,200/- were in the joint names of defendant No. 1 and plaintiff and N.S.C. for a sum of Rs. 5,000/- in the name of defendant No. 1 was also benami. The defendants started to threaten to interfere in the possession of the plaintiff over the property in dispute.