FIROZ JAHAN Vs. NAZIM HUSAIN

JUDGEMENT

(1.) Heard Sri Hari Om Singh, learned counsel for the appellant and Sri S.K. Mehrotra, learned counsel for the respondent.

(2.) This is defendants Second Appeal arising out of Regular Suit No.87 of 1961, Nazim Husain and another Vs. Smt. Firoz Jahan and four others. The suit was instituted for possession of a house except a part thereof consisting of a Kothari and a shop. The Kothari and the shop were stated to be in possession of another person Qazim Husain. The suit was dismissed by Additional Civil Judge Lucknow on 8.1.1965 holding the suit to be barred by Article 142 of old limitation Act. Against the said decree plaintiffs, respondents No.1 & 2 filed civil appeal no.58 of 1965 which was allowed by 4th A.D.J. Lucknow on 16.5.1979, judgment and decree passed by the trial court was set aside and plaintiffs suit for possession was decreed along with Rs.26/- as damages for use and occupation and pendente lite and future damages for use and occupation @ of Rs.7/- month. This second appeal is directed against the decree passed by the lower appellate court.

(3.) Initially lower appellate court had dismissed the appeal against which decree Second Appeal no.112 of 1967 was filed which was allowed by this court on 3.4.1974. The lower appellate court at the earlier occasion had refused to take on record some documents sought to be filed before it as additional evidence. The high Court through judgment and decree dated 3.4.1974 directed that said documents shall be taken on record as additional evidence.