SATISH KUMAR Vs. RAM KISHORE

JUDGEMENT

(1.) In order to appreciate the controversy involved in the instant second appeal, the Court will have to travel back in time to trace the genesis of the dispute. The record indicates that Sri Badri Prasad as plaintiff had instituted a suit against Sri Ram Kishor seeking joint possession of the property in question situated in Village Parishar Khas, Tehsil and District Unnao. The said suit seeking joint possession was instituted in the Court of Munsif, North, Unnao registered as Regular Suit No. 7 of 1966. The said suit was decreed by the Court of Munsif, North, Unnao for joint possession over the plots as mentioned in para 1 of the plaint by means of judgment and decree dated 23.05.1968.

(2.) Sri Ram Kishore, the defendant of Regular Suit No. 7 of 1966 being aggrieved from the judgment and decree dated 23.05.1968 preferred a Regular Civil Appeal under Section 96 C.P.C. which was registered as Regular Civil Appeal No. 75 of 1968. The said appeal was dismissed by the Lower Appellate Court by means of a judgment dated 13.10.1969. Thereafter Sri Ram Kishore escalated the matter and filed a Second Appeal under Section 100 C.P.C. before this Court registered as Second Appeal No. 355 of 1969. During the pendency of the aforesaid Second Appeal Sri Badri Prasad died and he was substituted by his legal heir and widow Smt. Phoolkali. The aforesaid second appeal was allowed by a coordinate Bench of this Court by means of judgment and decree dated 26.04.1973 holding that the plaintiff (Badri Prasad) was not entitled to get possession of the property in suit. The judgment and decree of the two courts was set aside and the suit was dismissed with cost.

(3.) It is in this backdrop, that once the suit of Badri Prasad was dismissed, thereafter Ram Kishore preferred an application under Section 144 C.P.C. seeking restitution of possession as well as damages and mesne profit from Smt. Phoolkali (widow of Sri Badri Prasad) as by then Badri Prasad had died. This application was moved before the Court of Munsif North, Unnao and was registered as Misc. Case No. 53 of 1974.