MOHD ALI Vs. DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) S. U. Khan, J. At the time of arguments no one appeared on behalf of respondents, hence only the arguments of the learned Counsel for the petitioner were heard.

(2.) COPY of plaint, had not been annexed along with the writ petition. It was supplied and taken on record on the date on which arguments were heard.

(3.) I, therefore, find absolutely no error in the impugned judgments of both the Courts below in respect of dismissal of suit as abated against defendant No. 2 Mohd. Mustafa. However, judgments of the Courts below are erroneous in law in so far as suit against defendant No. 1 has also been dismissed by them. In the plaint, the main prayer i. e. prayer No. 1 is of permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiff over the land in dispute. The second prayer is that in case plaintiff is not found to be in possession, then he must be given possession. Suit for permanent prohibitory injunction does not become incompetent upon the death of some of the defendants and non-substitution of their legal representatives. In case plaintiff proves that he is in possession and has got a right to remain in possession then only defendant No. 1 may be restrained from interfering in his possession. However, as far as the alternative prayer for possession is concerned, in case after trial it is found that sons of defendant No. 2 Mohd. Mustafa are also in possession then no decree for possession against them in favour of the plaintiff can be passed.