MURARI DASS Vs. GOPAL DASS AND OTHERS

JUDGEMENT

(1.) The plaintiff instituted a suit against the defendants for declaration and for permanent prohibitory injunction. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom by the aggrieved defendant No.1 before the learned First Appellate Court, the latter Court dismissed the appeal, whereupon, it concurred with the verdict recorded by the learned trial Court. In sequel thereto, the defendant No.1/appellant herein is driven to institute the instant appeal herebefore. .

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit against the defendants before the learned trial Court for seeking decree for declaration that the plaintiff is owner in possession alongwith his share holders and that the entry in the name of the defendants in Column No.9 Ba-Bajah Rehan is illegal, void, without any basis against the Act, Rule and statute and against the principles of natural justice and for permanent prohibitory injunction restraining the defendants from interfering in the ownership and possession of the plaintiff in any manner, whatsoever and in the alternative suit for possession on basis of title, if the defendants claim their possession on the basis of illegal entries. It was averred in the plaint that the plaintiff is joint owner in possession alongwith share holders of the suit land and that the defendants have no right, title or interest over the same. The plaintiff has no clash of interest with his joint owners and as such, they are not arrayed as parties.

(3.) The defendant No.1 contested the suit and filed written statement, whereas, defendant No.2 did not contest the suit and was ordered to be proceeded against ex-parte. It was pleaded by defendant No.1 that he is owner in possession of khasra No. 791, 1378 and 1377 since the plaintiff has failed to redeem the suit land within the stipulated period of 30 years and it was further averred that the land comprised in Khasra Nos. 791, 1378 and 1377 in Khata No.264, Khatauni No.414 and 415 mortgaged by the ancestors of the plaintiff about hundred years ago with the ancestors of the replying defendant. As such, the plaintiff has no right to file the present suit and the suit is time barred. In the alternative, it was further pleaded that if the defendants failed to prove the mortgage in that event he has become owner of khasra Nos. 791, 1378 and 1377 by way of adverse possession. The defendant has further pleaded that he has no concerned with the land in Khatoni No. 413.