JABBAR KHAN Vs. RAJENDRA KUMAR JAISWAL

JUDGEMENT

(1.) With the consent of learned counsel appearing for the parties, appeal is heard finally at motion stage.

(2.) This first appeal has been preferred by the appellant/plaintiff challenging judgment and decree dtd. 5/1/2002 passed by Second Additional District Judge (Fast Track Court), Harda in Civil Suit No.24-A/2001, whereby the trial Court has dismissed the suit of appellant/plaintiff.

(3.) Learned counsel for appellant/plaintiff submitted that respondent/defendant is in possession of ground floor of the suit house. Sona Bai was the mother of the respondent/defendant and Mahendra Kumar is the brother of the respondent/defendant. The appellant/plaintiff has acquired the newly constructed ground and first floor constructed in the back side of the existing house from 20/2/1997. The mother of the respondent/defendant has died on 7/3/1998. At the time of execution of the sale deed the mother of respondent was living with her other son Mahendra Kumar at Durg. It is further submitted that appellant/plaintiff had purchased the suit house, which was in ownership of Late Sona Bai by a sale deed dtd. 20/2/1997 from Mahendra Kumar, who was the Power of Attorney holder of Late Sona Bai. Respondent/defendant was residing in the suit premises on the oral consent of his mother and it is also mentioned that appellant/plaintiff immediately after execution of the sale deed asked the respondent/defendant to vacate the portion in his possession. It is also submitted by counsel for appellant/plaintiff that the said property had come to Late Sona Bai from her father Shankar Lal according to his last Will dtd. 15/5/1966. The appellant/plaintiff has duly entered his name in Nagar Palika Harda as owner of the same and the respondent/defendant had not taken any objection for the same nor put up his own claim of any kind neither he challenged the ownership of late Sona Bai. The appellant/plaintiff therefore disputed structure valued at Rs.85,000.00 and has paid appropriate court fee and filed a suit for ejectment of the respondent/defendant from the suit property. In the said suit the appellant/plaintiff had also prayed for the interim mesne profit at Rs.20.00 per day till the decision of the suit from the respondent/defendant.