SYED MOHAMMAD HASHMI Vs. DAMODAR DAS AND OTHER

JUDGEMENT

(1.) SECOND appeal against judgment and decree passed by 3rd Additional District Judge, Gorakhpur dated 16.09.1974 in Civil Appeal No. 45 of 1974 (Syed Mohammad Hashim Vs. Damodar Das & three others) arising out of Original Suit No. 210 of 1970 decided by Civil Judge on 18.12.1983 in between (Damodar and three others Vs. Syed Mohammad Hashim).

(2.) BRIEF background of the case is that one Bhagwati Prasad was the owner of the property in question. Said Bhagwati Prasad transferred the said land in suit vide sale deed 10.01.1967 in favour of the plaintiffs Damodar Das and three other. After sale deed, plaintiffs claim that they were in possession. Defendant-appellant in June 1970 entered into forcible possession over the land in suit erected tin-shed and fitted a saw mill. Request for vacating the premises went unheeded, then Original Suit No. 1970 was filed for possession over the disputed land after removal of offending constructions and for permanent injunction restraining the defendant-appellant from interfering with the peaceful possession of the plaintiffs over the disputed land. Subsequent to the same Original Suit No. 113 of 1972 was filed for damages. In the said suit defence was taken to the effect that land in question was taken on rent in February, 1970 from Bhagwati Prasad and substantial amount has been spent in constructions and further plaintiff is never in possession over the land in dispute. Both the suits in question were consolidated and in all six issues were framed in Suit No. 210 of 1970 and seven issues were framed in Suit No. 113 of 1972. Trial court on 18.12.1973 decreed the suit. Aggrieved against the same Appeal has been filed same has also been dismissed and thereafter present Second Appeal has been filed.

(3.) AFTER respective arguments have been advanced factual position which is emerging in the present case is that both the courts below have recorded categorical finding of fact that Bhagwati Prasad was the owner of the property in question and he sold the property in question vide sale deed dated 10.01.1967 in favour of the plaintiff Damodar Das and three other and possession was also handed over. Factum of possession has been accepted by both the courts below alongwith sale deed. Once sale deed dated 10.01.1967 has been executed by Bhagwati Prasad and possession has also been handed over then Bhagwati Prasad had no authority whatsoever to rent out property in question in February, 1970. In this background and on the basis of appreciation of the evidence courts below have recorded categorical finding of fact that defendants are rank trespasser. Said finding of fact is based on appreciation of evidence warranting no interference and no substantial question of law worth name is involved in the present case. Both the courts below have passed rightful decree in the fact of the case.