MOHAMMAD RAFIQUE Vs. DHAN KUMAR & ORS

JUDGEMENT

(1.) The present appeal filed under Section 96 of the C.P.C. is directed against the judgment and decree dated 27.2.2003 passed by the Additional District and Sessions Court No. 1 Sikar, (hereinafter referred to as the trial court) in Civil Suit No. 36/99, whereby the trial court has dismissed the suit of the appellant-plaintiff.

(2.) The short facts giving rise to the present appeal are that the appellant-plaintiff had filed the suit in the trial court seeking restoration of the possession of the suit shop and seeking damages. It was averred in the plaint inter alia that the suit shop was taken by the father of the plaintiff on rent about 50 years prior to the filing of the suit and since then the same was in possession of the plaintiff. It was also averred inter alia that in the year 1998, due to some business work, the plaintiff had gone abroad, and his business in the suit shop was being looked after by Shri Latif, who happened to be the cousin of the plaintiff and that when the said Latif had also gone to Bombay for his personal work, the defendant Nos. 1 to 3, in collusion with each other had forcibly taken over the possession of the suit shop. It was also averred that the plaintiff, therefore, had filed a complaint being F.I.R. No. 122/98, at Fatehpur Police Station under Sections 457, 380 of the IPC on 19.8.1998; that the defendant Nos. 2 and 3 forging a receipt had submitted the same before the said Police Station showing that the possession of the suit shop was handed-over by the plaintiff and therefore, the plaintiff had also filed another complaint being F.I.R. No. 128/99 in the said Police Station for the offence under Sections 420, 467, 468, 471 and 120-B IPC. According to the plaintiff he was illegally dispossessed from the suit property by the defendants which had caused loss of Rs. 45,000/- to him and therefore the suit for the recovery of possession of the shop in question and for damages was filed.

(3.) It appears that the deceased respondent No.1 (original defendant No.1) Shri Dhan Kumar had already expired prior to filing of the suit and therefore, the appellant-plaintiff had moved an application under O.I Rule 10 C.P.C. for impleading the legal representatives of the defendant No.1, however, the trial court had dismissed the said application. The present respondent Nos. 2 and 3 (original defendant Nos.2 and 3) had filed the written statement denying the allegations and averments made in the plaint and further contending inter alia that the father of the plaintiff late Yusuf had voluntarily handed over the possession of the suit shop on 4.2.1983 to Shri Babu Lal Sarawagi, who was the Munim of Sampat Kumar, father of the defendant No. 1 and that the said Shri Yusuf had also executed the receipt in that regard. It was further contended by the respondent No. 2 and 3 that they had purchased the suit shop on 5.2.1983, from the original owner Shri Dhan Kumar and that the plaintiff had no concern with the suit shop the possession of which was already handed over by the father of the plaintiff. The said defendants therefore had prayed to dismiss the suit.