NIRMALA DEVI Vs. RAM SAHAI

JUDGEMENT

(1.) Heard Shri Mohd. Arif Khan and Shri D. C. Mukherjee learned Counsel for the appellant and Shri Mohd. Afzal holding brief of Shri Z. Zilani on behalf of defendants/respondents. Both the appeals have been filed against the common Judgment of the first appellate Court hence with the consent of the parties decided by the present judgment.

(2.) Shri Vijay Bahadur and Smt. Nirmala Devi had filed a suit for permanent injunction against the defendants/respondents relating to the chabootara and open space situated adjacent to their house. According to plaintiff/appellant, they have purchased a house by registered sale deed dated 1st June 1957 from its owner Nishar Khan. A copy of the sale deed is on record as Exhibit No.1. Shri Nishar Khan had purchased house from its owner Shri Masuq Khan by registered sale deed dated 17th July 1987 filed as Exhibit No. 3 in the trial Court. The land and house situated on plot No. 6427, is a big plot existing in joint possession of various persons. The main controversy relates to open space situated adjacent to the house which the plaintiff/appellant claims to occupy under easementary right. In the suit, the defendant Ram Sahai and Barfi Devi has filed joint written statement.

(3.) Another regular suit No. 215 of 1971 was filed by Smt. Barfl Devi and Ram Sahai. It has been pleaded by Smt. Barfl Devi in her suit as plaintiff that she purchased the land in dispute by registered sale deed dated 26th September 1969 from one Raja Sahadat Ali Khan. The area of the land is four biswa four biswansi and is a part of the plot No. 6427. The sale deed was executed by one Ram Nath having power of attorney in his favour executed by Raja Sahadat Ali Khan on 5th June 1970. The suit was registered as regular suit No. 215 of 1971. Both the suits were consolidated since they involved dispute relating to same property. Regular suit No. 100 of 1971 was the leading suit filed by the appellant against the defendants/respondents. On behalf of appellant five witnesses were appeared in the witness box namely, PW-1 Ali Shah Khan, PW-2 Ram Jiyawan, PW-3 Cheddu Khan, PW-4 Vijay Bahadur, PW-5 Habib Ullah, PW-6 Mohd. Yakub. In regular suit No. 215 of 1971, DW1 Mohd. Ayaz Khan, DW-2 Hanuman Prasad, DW-3 Vishwanath Prasad, DW-4 Ram Sahai himself, DW-5 Sayad Mohd. Ali Khan, advocate and DW-6 Mohd. Yusuf appeared in the witness box. The trial Court recorded the evidence and decreed the regular suit No. 100 of 1971 by Judgment and decree dated 28th May 1975 and dismissed the regular suit No. 215 of 1971 filed by defendants/respondents. The trial Court after considering the entire material on record decreed the suit and held that the appellants are in possession of land in question and they have right to use the open space for their own purpose.