MOHAMMED SAIYAD Vs. ABDUL LATIF

JUDGEMENT

(1.) This civil second appeal by the plaintiffs-appellants, against the judgment and decree dated 08.04.1999 as passed by the Additional District Judge No.3, Jodhpur in Civil Appeal No. 1/1999, was admitted for consideration on 05.07.1999 on the following substantial questions of law:- 1. Whether a finding on a question of fact can be recorded against the admission and pleadings ?

(2.) Whether the proved possession of the plaintiff over the immovable property in question can be disturbed by the defendant without the due process of law ? 1. 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 Haji Mukhtyar Ali (since deceased and represented by his legal representatives-appellants) filed the civil suit bearing number 351/1982 in the Court of Civil Judge (Junior Division), Jodhpur City, Jodhpur seeking essentially a relief of injunction with the submissions that he was in possession of the property situated at Plot No. 840, Chopasni Road, Jodhpur admeasuring 120' x 30'; that under an agreement executed between the parties on 18.08.1968, he has raised construction on the suit property, of 11 shops and a gallery, while incurring expenditure of a sum of Rs. 65,259.76; and that 2 shops were in his possession and the rest were in possession of his tenants. It was submitted that the defendants were indulging in various acts and deeds of interference in possession of the plaintiff and intended to raise construction on the property in dispute. The plaintiff asserted that the defendants were not entitled to interfere with his possession and were required to be restrained by perpetual injunction. The defendants put the suit to contest, inter alia, disputing the quantum of investment made by the plaintiff in raising the construction and with the submissions that after expiry of the term of agreement, the plaintiff was merely an unlawful occupant and was not entitled to any injunction. On the pleading of the parties, the following issues were framed by the learned Trial Court:- ..(Vernacular matter omitted......)..

(3.) During the pendency of the suit, the plaintiff died and his legal representatives (present appellants) were taken on record as the plaintiffs. Ultimately, the learned Trial Court proceeded to decide the matter by its judgment and decree dated 15.12.1998. While taking Issues Nos. 1 and 2 together, the learned Trial Court found that the term of the agreement had already come to an end; and plaintiffs were not entitled to get the defendants restrained from raising construction on the roof of the shops in question but were only entitled to remain in possession of the disputed shops until dispossessed in due process of law. The learned Trial Court, accordingly, decreed the suit only to the extent that the defendants would not dispossess the plaintiffs from the suit property without due process of law. The decree as passed by the learned Trial Court reads as under:- ..(Vernacular matter omitted......)..