ABDUL SALAM Vs. SIRAZUL REHMAN

JUDGEMENT

(1.) This is second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.8.1983, passed by the Special Judge, Lakhimpur Kheri allowing the plaintiff-respondents' appeal preferred against the judgment and decree dated 21.8.1983 dismissing the plaintiff-respondents' suit for possession.

(2.) I have heard Shri Awadhesh Kumar, the learned counsel for the defendant-appellants and Shri Mohd. Arif Khan, the learned counsel for the plaintiff-respondents on the substantial questions of law formulated in the memo of the appeal.

(3.) It appears that the plaintiff filed a suit for possession of the disputed house alongwith a decree of damage at the rate of Rs. 30 per month on the basis of his title. The case of the plaintiff in brief was that the disputed house was jointly owned by him and his brothers Shamshul Islam and Kutubul Islam and they had jointly executed a sale deed dated 31.1.1961 for a consideration of Rs. 600 in favour of Prem Prakash. Subsequently, Prem Prakash re-transferred the house for a consideration of Rs. 600 by means of a registered sale-deed dated 3.2.1964 in favour of the plaintiff and since then the plaintiff was owner and in possession of the disputed house which was detailed in the plaint. Both the defendants were sons of the plaintiff's real brother Shamshul Islam and these defendants about three years ago had taken this house as a licensee from the plaintiff under the assurance that they would search out some other house and would vacate it. The defendants did not vacate it for a period of one year on different pretexts and lastly, they refused to vacate it. Earlier, the defendant No. 2 was residing at Barabanki and was carrying on business of repairs of radios. The defendant No. 1 was residing at the place of Kamal Mustafa in the city of Lakhimpur. The defendants had always been in possession as licensee and at last the plaintiff terminated the licence by means of a notice dated 28.7.1980 and it is also alleged that there was a kothari situated towards south-east corner of his house, which was in the plaintiff's possession and that kothari had also been forcibly and unlawfully taken by the defendants about one year ago.