HARI RAM Vs. MANGI LAL

JUDGEMENT

(1.) This civil second appeal, preferred by the plaintiffappellant (since deceased and represented by his legal representatives), against the judgment and decree dated 22.09.1995 as passed by the Additional District Judge No. 3, Jodhpur in Civil Appeal (Decree) No. 75/1994, was admitted for consideration on 22.11.1995 on the following substantial questions of law:-

(2.) So far this appeal is concerned, the controversy between the parties lies in a narrow compass and a brief reference to the background facts would suffice. The plaintiff-appellant Hari Ram (since deceased and represented by his legal representatives) filed the civil suit bearing number 59/1990 in the Court of Civil Judge (Junior Division), Bilara seeking essentially the relief of injunction with the submissions that he was in possession of the property (house) situated at village Uchiyara as described in paragraph 1 of the plaint. The plaintiff alleged that the house in question was of his ownership and possession and he was residing thereat but the defendant wanted to dispossess him by physical force and extended threats to that effect on 28.10.1990. The plaintiff asserted that the defendant was not entitled to interfere with his possession and was required to be restrained by perpetual injunction. The defendant put the suit to contest while disputing the averments taken by the plaintiff regarding ownership and possession of the house in question; and asserted that the house was of his ownership and he was in possession thereof. On the pleading of the parties, the following issues were framed by the learned Trial Court:- ..(Vernacular matter omitted......)..

(3.) After evidence of the parties, the learned Trial Court proceeded to decide the matter by its judgment and decree dated 23.08.1994. In relation to issue No.1, the learned Trial Court observed that in this case, the question of ownership was not being determined and rather, the plaintiff himself admitted the house to be the ownership of the defendant but then, asserted the same having been delivered in his possession by the defendant's father against a loan of Rs. 424/-. So far the question of possession was concerned, the learned Trial Court referred to the oral evidence led by the parties including the testimony of the Commissioner who had visited the site; and also referred to a document Ex. 2, suggested by the plaintiff to be that of the mortgage transaction. The learned Trial Court observed that the validity of the document Ex. 2 was not to be examined but from the said document and the testimony of the witnesses it was apparent that the plaintiff came in possession of the suit house with the consent of the defendant's father and was continuing in possession. In view of this finding on the question of possession, the learned Trial Court observed that the defendant was entitled to dispossess the plaintiff from the suit house only by taking recourse to the due process of law and decreed the suit to the following effect:- ..(Vernacular matter omitted......)..