JAREENA AND ORS Vs. NURUL ISLAM

JUDGEMENT

(1.) The matter has come up for consideration on the application filed by the learned counsel for the respondent-plaintiff, for vacating the interim stay granted by the court, however, the second appeal having not been heard on merits for admission, with the consent of learned counsel for the parties, the same is heard on merits.

(2.) The present second appeal has been filed by appellants-defendants challenging the judgment and decree dated 28.11.2008 passed by the Addl. District Judge No.4,Jaipur City, Jaipur (hereinafter referred to as the "appellate court") in Regular First Appeal No.8 of 2007, whereby the appellate court has allowed the said appeal of the respondent-plaintiff setting aside the judgment and decree dated 30.11.2006 passed by the Addl. Civil Judge (JD) & Judl. Magistrate No.1, Jaipur city, Jaipur (hereinafter referred to as the "trial court") in Civil Suit No.133 of 2002.

(3.) The short facts of the case of the respondent-plaintiff before the trial court were that the land in question was an open land being commonly used by him and his brother Badruddin. His brother Badruddin sold out his one half share to the plaintiff through registered sale deed dated 19.8.1986. Since, the appellant-defendants were trying to obstruct the respondent-plaintiff in raising the construction of the compound wall and also trying to take illegal possession of the said land, the suit was filed by respondent-plaintiff seeking permanent injunction against the appellant-defendants. The said suit was resisted by the appellants-defendants by filing written statement denying the allegations made in the plaint and further contending interalia that the plaintiff was not in possession, but the defendants were in possession of the suit premises. It was also contended that the defendants had become the owner by adverse possession, and the brother of the plaintiff i.e Badruddin had no right to sell the suit premises to the plaintiff. The trial court after appreciating the evidence on record, dismissed the suit of the respondent-plaintiff vide the judgment and decree dated 30.11.2006, against which the respondent-plaintiff had preferred an appeal. The appellate court vide the order dated 28.11.2008 allowed the said appeal and granted permanent injunction as prayed for by the respondent-plaintiff, setting aside the judgment and decree passed by the trial court.