MINRA DEVI Vs. KUBER

JUDGEMENT

(1.) HEARD Smt. Sharada Chauhan learned counsel for the defendant appellants and Sri A.K. Aditya learned counsel for the respondents.

(2.) ONE Kuber now deceased who is represented by his heirs and legal representatives as respondents had instituted a suit for permanent injunction against the defendant restraining them from dispossessing him from the land shown in read lines in the plaint map and from interfering in his possession and constructions situate over it. The suit was instituted on the allegations that the aforesaid land is part of araji no. 264/1 which has an area of 2 acres 96 decimal. His predecessor in interest Saudagar had occupied 18ft./35ft., of the aforesaid land about 40 years ago and had constructed a Kothari on a part of it and this area in his possession has been allotted new number S11/9-M/1 by the Municipal Board and he is occupying and living therein ever since then. The defendant appellants who have unauthorizedly occupied some other area of araji no. 264/1 are keeping in eye over the land in his possession and unauthorizely intends to take possession of the same. The defendants in reply put up the defence that they have been leased out 2 biswa 12 dhoor of the land of araji no. 264/1 on 25.2.1936 on which they constructed their house which has been allotted number S11/9B by the Municipal board. The plaintiff was a tenet since 1974 in one of the adjoining house no. 11/9A from which he was evicted. Therefore, the predecessor of the defendants permitted him to reside in one kothari on rent of Rs. 20 per month. Therefore, the kothari in which the respondents are now living is part of the land which had been leased out to their predecessor in interest.

(3.) THE second submission of the learned counsel for the appellants is that the courts below were not justified in decreeing the suit holding the plaintiff respondents to be the owner of the disputed land without the true owner being made party to the suit ie, Municipal Board/State of U.P. This argument is also not acceptable on the face of the record and the finding recorded by the courts below. THE courts below while deciding issue no. 1 have recorded a categorical finding that the plaintiff respondents are in actual physical possession of the land in dispute and therefore their possessory title is sufficient for grant of injunction against the defendants appellants. THE courts below have not declared the plaintiff respondents to be the owners of the land in dispute. THErefore, the argument raised is without substance.