NIRBHAYSINGH Vs. SHANKARLAL

JUDGEMENT

(1.) This is defendant's second appeal arising out of a suit for grant of permanent injunction. The plaintiffs' case in brief was that the suit land belonged to the plaintiffs, that they were in peaceful possession of the suit land for more than 50 years, and that the defendants were trying to forcibly dispossess the plaintiffs. The plaintiffs, therefore, prayed for grant of permanent injunction to restrain the defendants from interfering with the plaintiffs' possession over the suit land. The suit was resisted by the defendants inter alia on the ground that the defendants had purchased the land from Ramchandra and Kanhaiyalal by a registered were in possession of the suit land. The trial court found that the suit land was in continuous possession of the plaintiffs for about 50 years and that the defendants were unlawfully interfering with the plaintiffs' possession. The trial Court, therefore, decreed the plaintiffs' suit. On appeal, the judgment and decree passed by the trial court were affirmed. Hence, the defendants have preferred this second appeal.

(2.) Shri Vyas, learned counsel for the appellant, contended that the lower appellate court has failed to elaborately discuss and appreciate the evidence on record. The learned counsel for the appellant took me through the entire evidence and contended that the lower appellate court had erred in affirming the finding of the trial court that the plaintiffs were in continuous possession of the suit land for about 50 years prior to the institution of the suit.

(3.) Having heard the learned counsel for the parties, I have come to the conclusion that this appeal deserves to be dismissed. The plaintiffs came to the court with a case that though the suit land was recorded in the name of Khemraj, brother-in-law of the father of plaintiff 1 the transaction was Benami and that the father of plaintiff 1 and thereafter plaintiffs were in continuous possession of the suit land. It has come on record that after the institution of the suit, the plaintiffs had prayed for grant of temporary injunction against the defendants and that prayer was allowed. On appeal, the order of the trial court was affirmed. However, when the suit was dismissed for default, the defendants took possession of the suit land. Thereafter the trial court, after restoration of the suit, directed by its order dated 26-10-1970 that the defendants should deliver possession of the suit land to the plaintiffs. That is how the defendants had come into possession of the suit land for some time after the institution of the suit but this fact would not disentitle the plaintiffs to the grant of permanent injunction if the plaintiffs were found to be in possession of the suit land on the date of the institution of the suit.