RAMJI SETH Vs. ZOHRA KAIMI

JUDGEMENT

(1.) THIS is a second appeal against the order dated 23 -11 -1974 passed by the learned Second Additional District Judge, Azamgarh.

(2.) THE brief facts giving rise to this appeal are that the Respondent filed O. S. No. 525 of 1960 against the Appellant and another for a declaration that the sale deed executed by the Custodian in favour of the Appellant is null and void and the disputed property is wakf property. Possession was also prayed for. The suit was dismissed by the trial court on 19 -12 -1964. Civil Appeal No. 121 of 1966 was filed by the Respondent and the same was allowed on 19 -8 -1966. The judgment and decree passed by the trial court were set aside and the suit for declaration and possession was decreed against the Appellant and another. The Appellant filed Second Appeal No. 162 of 1967 on 1 -11 -1968. The second appeal was partly allowed and the judgment and decree passed by the lower appellate court were modified to the extent that the suit for declaration of land was decreed and the decree for possession was set aside. The Respondent had obtained possession over the property in pursuance of the decree passed by the lower appellate court and after the decision of the second appeal, the Appellant applied for restitution. The application was allowed by the trial court. The Respondent preferred Misc. Appeal No. 80 of 1974 and the same was decided by the learned Second Addl. District Judge by the impugned order. The appeal was allowed and the order passed by the learned Munsif was set aside. Hence, this second appeal.

(3.) THE main question that has been urged before me is that even though the decree passed by the lower appellate court in Civil Appeal No. 121 of 1966 may have been reversed by the High Court in Second Appeal No. 162 of 1967, the Appellant is not entitled to restitution of possession as he is a trespasser.