KHAIRUNISA BEGUM Vs. JEELANI BEGUM

JUDGEMENT

(1.) Heard learned counsel Mr. Y.M.Khan I/b. K.G.Khadar, who appears for the appellant and learned advocate Mr. P.F. Patani, who appears for respondents No.1 to 5.

(2.) This second appeal is admitted by this Court by the order passed on 1st November, 1988 on following substantial question of law. They are reproduced hereinbelow.(Grounds No.2 and 7 in the memo of appeal.)

(3.) The appellant was the plaintiff in Regular Civil Suit No. 647/1984. This suit was for permanent injunction, restraining the defendants from interfering in to the demolition and construction of eastern wall of house No.3-1-1985. The defendants, after entering appearance, have filed written statement Exh. 28. The learned Trial Court, after considering the pleadings of the parties, had settled about 7 issues. Issue No. 1 framed by the Trial Court, has placed burden of proof on plaintiff regarding her claim that she is legal owner of eastern wall of house No.3-1-85. Issue No. 5 is relevant and important, which was framed regarding the entitlement of the plaintiff for perpetual injunction, the burden of proof obviously was on the plaintiff. The Trial Court has recorded finding on issue No. 1 in favour of plaintiff and finding on issue No. 5 is recorded in negative i.e. against the plaintiff. The suit of the plaintiff came to be dismissed with costs by Trial Court by judgment and decree dated 15th of December, 1986. This dismissal of the suit, against the the plaintiff, was challenged by filing Regular Civil Appeal No. 11/87 in the Court of learned District Judge of Aurangabad (First Appellate Court). Regular Civil Appeal No. 11/87 has been dismissed with costs by the First Appellate Court by its judgment and decree passed on 30th of September, 1988. It was plaintiff's appeal. The aggrieved plaintiff thereafter filed this second appeal.