MUSHTAQUE AHEMAD Vs. NAZIR AHEMAD

JUDGEMENT

(1.) Orginal plaintiff is challenging a common order passed in Misc. Civil Appeals, one of which was filed by himself and the other by the original defendant. By the instant order, the Appellate Court refused the injunction, which injunction was also refused by the Trial Court; while injunction granted in favour of the original defendant Nazir Ahemad was confirmed. The two appeals were registered as Misc. Civil Appeal Nos. 190 & 191 of 1992 and they were disposed of by the common order. The present civil revision challenges this common order.

(2.) Shortly stated the facts are that the present applicant/original plaintiff Mushtaque Ahemad filed Civil Suit No. 63 of 1992 against the present non-applicant/original defendant Nazir Ahemad, claiming a perpetual injunction restraining the defendant from causing obstruction to his work of erecting-fencing around the suit land, Khasra No. 187/1, area 2.99 hectares, situated at Modja Deolapar. Similarly, Nazir Ahemad also filed Civil Suit No. 64 of 1992 for a perpetual injunction restraining Mushtaque Ahemad, the present applicant, from causing obstruction to his possession of the suit land, area 45' x 60' of the said Khasra No. 187/1, which is now numbered as Khasra No. 161. The Trial Court came to the conclusion that the applicant has no prima facie case.

(3.) In his complaint, as well as the application under Order 39 Rules I & 2 of the Code of Civil Procedure, the present applicant had contended that he had purchased this land for Rs. 37,000/- from one Khushmuddin and some others. He contended that he had searched for the record for title verification and finding that there was no cloud on the title of Khushmuddin and four others, viz., Sheikh Habib, Sheikh Majid, Pyari Begum and Joharabai, he had gone through the further exercise of obtaining the sale deed. He contended that he had also got the said land mutated after the sale deed and thereafter he removed some of the encroachers who were on that land by entering into compromise with them on 5.3.1992. He urged that this compromise was after a survey and measurement of the land were got done on 12.12.1990. His further contention was that when he started erecting the barbed wire fencing and completed it on 7.3.1992, the present non-applicant removed this fencing and, therefore, the matter was reported to the police. He contended that the present non-applicant was obstructing without any right and, therefore, he was liable to be restrained and temporary injunction to that effect was also liable to be issued against him (present non-applicant). The present non-applicant/original defendant denied by way of his reply that the applicant/original plaintiff was a purchaser of land khasra No. 187/1. The facts regarding the search etc., and the measurement are denied. He contended that on 12.8.1987 itself, he had entered into an agreement of sale with the three vendors out of five, in respect of a plot admeasuring 45'x 60' for consideration of Rs. 9,500/-. He also claimed that he was put in the possession of the said plot on 12.8.1987 itself, in pursuance of that agreement of sale. He further contended that thereafter he found that the present applicant Mushtaque Ahmed had started constructing a barbed wire compound and had threatened him and, therefore, he claimed that he was liable to be protected by an injunction restraining the present applicant from interfering with his possession in respect of plot admeasuring 48' x 60'. He also raised a plea that after the agreement of sale, he had got a sale deed executed in his favour, dated 18.2.1991.