ABDUL HAMID Vs. SAEED AHMAD

JUDGEMENT

(1.) S. K. Phaujdar, J. The present plaintiff appellant and the two plaintiff respondents filed O. S. No. 1015 of 1962 before the Additional Munsif, Jhansi, for recovery of possession of a House No. 2716 as described in details in the plaint. It was stated that the three plaintiffs and defendant No. 2 were the owners of the suit-house. The defendant No. 1 had encroached upon this house and had not vacated despite service of notice which compelled the plaintiff to file the suit. The encroachment was allegedly made six years prior to the filing of the suit. Defendant No. 1 contested the suit and pleaded that he was the owner of the house in question as he had inherited the same from one Salamat Khan. He had further pleaded that the suit was barred by Section 42 of the Specific Reliefs Act.

(2.) THE trial Court framed three issues, (1) whether the suit was barred under Section 42 of the Specific Reliefs Act, (2) whether the plaintiffs and defendant No. 1 were the owners of the house, and (3) whether the plaintiffs were entitled to any relief. THE trial Court was of the view that the suit was not barred under Section 42, the plaintiffs were the owners of the property and were accordingly entitled to the possession of the suit property after eviction of defendant No. 1 therefrom.

(3.) ELABORATING his points, Sri Sankatha Rai, appearing for the appellant, submitted that a clear-cut case of ownership was raised by the defendant so far the suit-property is concerned while the plaintiffs came up with a clear-cut case of wrongful possession on the part of the defendant No. 1. The Court, according to the learned counsel had no authority to infer a third case from the facts proved in the case and the first Appellate Court had also failed t note that the elements of Section 60 of the Indian Easements Act were not there in the facts and circumstances of the case. A reading of the judgment and decree of the first appellate Court indicates that he had laid stress on certain admissions made by P. W. 4, Abdul Hameed, the plaintiff No. 1 himself. This witness had accepted during examination that the co-owner, Mohammed Yunis had permitted the defendant to stay in the suit-premises. This witness had also accepted that he had not objected to such grant by Yunis. He had further found that substantial constructions were made by the defendant on the suit-property and the first appellate Court inferred that the licence granted by a co-owner Mohammed Yunis to defendant No. 1 was not to be revoked as the licensee, acting upon licence had executed a work of a permanent character and had incurred expenses in the execution.