RAM NIWAS Vs. SANTOSH RANI

JUDGEMENT

(1.) THE respondents herein, plaintiffs in the suit, had instituted a suit praying for decree of permanent injunction restraining the defendants in the suit from interfering into their possession on a residential plot No. 62 measuring 36' x 31' plus Gosha Shumal Garbi 30' x 10' the particulars of which were given in paragraph 1 of the plaint. The plaintiffs had claimed that their father had purchased the land for sale consideration of Rs. 1500.00 vide sale deed dated 4. 7. 1984, The suit was contested by the defendants. They stated that they were in possession of the plot in question and the possession had been surrendered in their favour by one Jagdish Chander. The defendant No. 1 had constructed a kotha and they were in possession of the property. Suit was contested by defendants.

(2.) BASED on these facts, the learned trial court after framing the following issues not only decreed the suit for permanent prohibitory but even directed by way of mandatory injunction that temporary structure will be removed through the process of court.

(3.) BOTH these contentions raised on behalf of the appellants have merits. With the help of the learned counsel for the parties, the judgments in question have been perused. The learned counsel appearing for the respondents herein has not been able to show that any positive finding in favour of the plaintiffs has been recorded in regard to the factum of possession. Issue No. 2 has been dealt with and decided alongwith 5 other issues but no definite finding has been recorded based on documents or oral evidence by the Court, which could establish the possession of the plaintiffs on the property in question. It has been stated by the trial court in its judgment that Jagdish Chand was in possession of the property in question. That fact is not in issue because both the parties claimed possession through the same person. The judgment of the learned trial court in any case merged into the judgment of the first Appellate Court and some findings and observation of the first Appellate Court needs to be noticed at this juncture.