AMIRHAMJA AMIN MUJUWAR Vs. KISAM PEERSAHEB GUNDEWADI

JUDGEMENT

(1.) Heard Both sides.

(2.) This appeal is filed by the original plaintiff No.1(a) and has been admitted on the Question Nos. 8,10 and 17 as framed in the appeal memo. The said questions are as follows.

(3.) I have perused the entire record. On perusal of the plaint, it becomes clear that the prayer (a) in the plaint pertains to grant of perpetual injunction and prayer (b) was to the effect that if during the pendency of the suit the plaintiff is dispossessed by using services of the goondas then a possession should be restored to the plaintiff. This was clearly not alternative prayer for possession. The plaintiff also did not seek any declaration regarding ownership of his title. During the pendency of the suit the original plaintiff died leaving behind the plaintiff No.1A who is the present appellant. The said plaintiff No.1A stepped into the witness box and gave categorical admission that the original plaintiff had been dispossessed by the sons of one Peersaheb even prior to the filing of the suit. The admission was to the effect that the dispossession was prior to the suit. A police complaint had been filed and the suit had been filed by the original plaintiff. The appellate court has dismissed the appeal filed by the defendant Nos. 1,4,5 and 7 on the short ground that once it was admitted that the possession had been lost prior to the suit, then the suit for simpliciter injunction would not lie. It may be mentioned here that the Trial Court has also refused injunction on this ground but granted decree for possession which in fact was prayed for by the original plaintiff. This decree for possession was over turned by the decree of the Lower Appellate Court which dismissed the plaintiff s suit in totality.