PREMWATI Vs. JAGDISH PRASAD D

JUDGEMENT

(1.) Subject matter of impugnment in this second appeal is the judgment and decree dated 18.10.1986 passed by 2nd Addl. Civil Judge, Saharanpur whereby Civil Appeal No. 102 of 1985 was allowed and judgment and decree passed by the trial court dated 30.11.1985 in Original Suit No. 268 of 1982, Premwati v. Jagdish and Ors..

(2.) The dispute erupted and escalated into institution of Original Suit No. 268 of 1982 when defendant No. 1 threatened plaintiff with eviction from the house, i.e., house No. 6/1011 situated in Mohalla Nai Basti. Saharanpur. The plaintiffs case as unfolded in the plaint is that plaintiffs husband namely, Hukam Singh and Jagdish Prasad were full blooded brothers and the house in question was jointly purchased by the father-in-law of the plaintiff. Initially, the entire family were residing in their ancestral village, e.g., Baheda, Sandal Singh and after acquisition of the said property, the entire family shifted to the house in question in the year 1960 and ever since then, plaintiff and other members had been residing in the house in question. It is further alleged in the plaint that the husband of the plaintiff was dim-witted with weak intellect and his whereabouts are not traceable for the last several years. It is further alleged that the defendants played foul with his brother Hukam Singh in getting the property registered in their names excluding Hukam Singh and soon thereafter, he disappeared and there is no trace of his whereabouts. It is further alleged that the defendant No. 1 threatened the plaintiff with eviction from a portion of the house in her possession which necessitated the institution of aforestated suit. In the written statement, the defendant repudiated the plaintiff's case claiming that the house in question was acquired exclusively by him which he purchased through six sale deeds executed between July, 1956 to 1961 and in consequence, claimed exclusive ownership by possession. The defendant also denied possession of the plaintiff and sought dismissal of the plaint.

(3.) The trial court upon appraisal of evidence on record decreed the suit for injunction and restrained the defendant from interfering with the possession of the plaintiff. In appeal preferred against the verdict of trial court, the appellate court reversed the finding and dismissed the suit while setting aside the decree. From a perusal of the finding recorded by the appellate court, it would appear that the appellate court upturned the finding on two grounds firstly that the claim of the plaintiff of co-ownership is not proved from the evidence on record and secondly that the plaintiffs possession cannot be said to be valid possession and hence no injunction could be granted. In the Second appeal, the Court referred to question No. 5 as substantial question and also distilled following question as substantial question for consideration and determination. The question framed by the Court may be quoted below : "Whether the plaintiff appellant being in settled possession of the house in question, any decree for injunction could be passed in her favour and appellate court erred in law in dismissing the suit ?"