SHANKERLAL Vs. BADRIPRASAD

JUDGEMENT

(1.) THIS is a Defendant's second appeal against the judgment and decree dated the 4th of April 1958 passed by the Addl. District Judge Gwalior, in Civil Appeal No. 361 of 1953 whereby he confirmed the judgment and decree dated the 4th of August, 1953 passed by the Civil Judge II Case Gwalior in Civil Suit No. 439 of 1949.

(2.) THE suit out of which the present appeal arises was filed by the present Respondent Badriprasad against Shankarlal for ejectment and permanent injunction on the ground that the Defendant was occupying a portion of the temple property which belongs to the Plaintiff in the capacity of a tenant in lieu of services rendered by him as a 'Pujari' in the temple. It was alleged that a few days prior to the suit when the Plaintiff wanted to repair a portion of the temple premises, the Defendant asserted his own title and did not allow the Plaintiff to make the necessary repairs. It was further alleged in the plaint that on a piece of land forming part of the temple property being acquired by the Municipality a dispute had arisen between the Plaintiff and one Ghanshyam as to the right to receive the compensation. Ghanshyam filed Civil Suit No. 168 of 99 in the Court of the Addl. Sub -Judge Lashkar in which both Gokulprasad, the Plaintiff in the present suit and Shankarlal, the Defendant, were joined as co -Defendants, Shankarlal claimed that he had been in possession of the property in dispute for more than 30 years and that neither Gokulprasad nor Ghanshyam had any right to receive the compensation in respect of the acquired land Shankarlal not having led any evidence in support of his claim, it was held by the Addl. District Judge that Ghanshyam and Gokulprasad were jointly entitled to receive the compensation awarded in respect of the said land.

(3.) THE trial Court held that the property in dispute belongs to the Plaintiff but that there was no evidence to show that the Defendant was residing in a portion thereof as a tenant in lieu of the services rendered by him in the temple. It further held that the judgment passed in Civil Suit No. 168 of (sic)9 which was confirmed on appeal operates as res judicata against the Defendant and that the possession of the Defendant was not adverse to that of the Plaintiff. It, therefore, decreed the Plaintiff's claim for ejectment and permanent injunction.