MD TASLIM Vs. MD ALIM

JUDGEMENT

(1.) RE : I.A. No. 3112 of 2004 Respondent No. 5 has filed this application under Section 151 of Civil Procedure Code (In short "CPC") for directing appellant to release portion of the suit property which is a house which the appellant is occupying as trespasser and putting respondent No. 5 in possession of that portion.

(2.) BRIEF facts of the case are that appellant filed a title suit claiming share in a house which according to the appellant belonged to one Karamat Mian who got this house on partition with his brothers and who died leaving behind two sons, namely, Israfil @ Bhulton and Roshan Mian and appellant and defendants second party were sons and daughters of Roshan Mian and defendant first party were son and daughter of Israfil Mian and suit property was in joint possession of the parties and defendants turned dishonest and usurped the entire property and when appellant demanded partition, defendants refused it. In that title suit contesting defendant contested the suit claiming the entire suit property. The suit was dismissed by Court below and appellant, therefore, has preferred this appeal against the judgment passed by Court below in Title Suit No. 121 of 1981 which was filed by him.

(3.) THE present appeal is against the judgment of Court below which dismissed the suit of appellant which was filed by the appellant claiming share in the suit property. The Court below framed a number of issues and coming to the conclusion that defendant/respondent No. 2.was in exclusive possession of suit property since at least from 18.7.1971, there is no joint possession between the parties, plaintiff/ appellant has lost title to the suit land by way of ouster and adverse possession as he was dispossessed in 1971, dismissed the suit of plaintiff/appellant. Now petitioner, who is a purchaser from defendant/ respondent No. 2, has made a prayer that because plaintiff/appellant is in occupation of entire suit property including a house as a trespasser, therefore, he should be evicted from half portion of the suit property and petitioner be put in possession of that portion. The scope in this appeal is to decide the correctness of the judgment which has been passed by Court below in title suit which was filed by the appellant. To allow the prayer of petitioner will lead to a conclusion that appellant is in possession of entire suit property which will be against the finding of the Court below which is under appeal. It is the own case of petitioner that after purchasing half portion of suit property from defendant/respondent No. 2 when he did not get possession, he filed Title Suit No. 17 of 1999 in which plaintiff/appellant filed petition under Section 10 of CPC for staying further proceeding of the case but his petition was dismissed and then plaintiff/appellant filed civil revision No. 1207 of 2002 which was allowed and further proceedings of Title Suit No. 17 of 1999 were stayed but petitioner was given liberty to raise his grievance in this appeal. Admittedly, petitioner filed the aforesaid title suit for possession of suit house which is said to have been purchased by him and further proceeding of this suit has been stayed by this Court in civil revision No. 1207 of 2002. Allowing the prayer of petitioner at this stage will also mean for allowing the prayer of petitioner which he has made in Title Suit No. 17 of 1999, the further proceeding of which has been stayed by another Bench of this Court.