SHAFI Vs. AZIM

JUDGEMENT

(1.) This appeal under section 100 of CPC has arisen from the judgment and decree dated 21.4.1976 passed by Shri S.K. Mishra, II nd Additional District Judge, Jalaun at Orai whereby it has reversed the judgment and decree dated 22.12.1973 passed by Munsif, Orai in O.S. No. 254 of 1970.

(2.) The plaintiff Mohd. Azim instituted the aforesaid original suit seeking a permanent injunction against sole defendant Mohd. Shafi restraining him from raising any construction or otherwise interfering in the house and ''Khandhar' detailed in the map appended to the plaint which belongs to the plaintiff. The plaint case set up by the plaintiff-respondent was that the plaintiff is owner of the disputed premises which was purchased by the plaintiff's father Hafiz Ahmad Ullah Khan vide sale deed dated 12.1.1940 registered on 13.1.1940 and since then the plaintiff's father and thereafter plaintiff is in possession thereof. After the death of plaintiff's father, the disputed property was partitioned between plaintiff and his brother on 22.3.1969 whereupon the house and other land shown as Aa, Ba, Sa, Da, Ya, Ra, La, Ha, Na came to the share of the plaintiff and since then he is owner and in possession thereof. The plaintiff's father got a map sanctioned from competent local authority on 17.5.1953 but could not raise any construction due to scarily apart. The defendant who was posted as Registrar Kanoongo Tehsil Conch, having influence in the collectorate started construction on the north of the plaintiff's house and also commenced digging his house so as to creating obstruction in the possession of the plaintiff and despite requests continued to create obstruction which has recently been stopped by him. However, he may again start his illegal activities and therefore the aforesaid suit was filed.

(3.) In the written statement filed by defendant-appellant, it was pleaded that he became owner of the residential house through a gift executed by Smt. Dhura, who also transferred possession of all the appurtenant land lying in front of the said residential house. There was no ''Baithak' on the disputed land and it was throughout ''parti' land. In the north of the house shop of Hussain Bax existing possession whereof was taken by defendant from Zamindar Smt. Raj Kunwar after paying ''nazarana' on 25.10.1951. The defendant''s son also took ''parti' land (lying on the south of the house and shop of Abdul) on 5.5.1959 by paying ''nazarana' to Zamindar. It was pleaded that the plaintiff's father was never in possession of the disputed land within 12 years of the suit and defendant was in adverse possession thereof. He also pleaded that in batwara in 1896 some Baheliyas were having house and were enjoying the status of Riyayas and after this they left their houses which became ''Khandhar' Parti land and Zamindar got the land back according to Wajibul Arz and become owner and in possession of the house of Baheliyas. The defendant obtained ''Ijazatnama' from Zamindar in order to avoid any future trouble. Defendant son obtained sale deed of the disputed land from the sons of Blwant Baheliya on 8.7.1969 and since then defendant became complete owner and in possession of the disputed land. The trial court formulated following 5 issues.