NIJAMUDDIN Vs. GULSHAN

JUDGEMENT

(1.) In this second appeal, appellant-defendant No.1 has assailed the judgment dtd. 13/3/2008 passed by Additional District Judge No.2, Jaipur City, Jaipur in First Appeal No.58/2006, affirming the judgment and decree dtd. 17/10/2006 passed by Civil Judge (Junior Division), Jaipur City (West), Jaipur in Civil Suit No.241/1996 whereby suit for permanent injunction has been decreed in favour of respondent-plaintiff. The following decree has been passed:-

(2.) From perusal of record, it transpires that dispute between parties is in relation to front portion of Plot No.52 measuring 70.66 square yards situated at Jalupura Scheme, Jaipur. The plot was allotted by the then UIT (Urban Development Trust) in the name of plaintiff No.1-Hasam Khan. The plaintiff No.2 claimed that plaintiff No.1- Hasam Khan transferred this portion to her by way of registered gift deed dtd. 9/9/1996. During pendency of trial, plaintiff No.1-Hasam Khan had passed away and plaintiff No.2 continued the civil suit. Plaintiffs filed a civil suit for permanent injunction, stating that defendant No.1 (appellant herein) is tenant in the first floor and defendant No.2, 3 and 4 are tenants in the shops at ground floor. In counter, defendant No.1-appellant submitted his written statement alleging inter alia that he had an agreement to sale dtd. 27/8/1996 from plaintiff No.1 for the whole portion including first floor and shops at ground floor and he denied his status/possession on the first floor as tenant. Appelllant-defendant No.1 also contended that defendant Nos.2, 3 and 4 are his tenants. The trial Court on the basis of rival submissions proceeded with the trial of suit and finally passed a decree for permanent injunction against appellant-defendant No.1 in the manner as mentioned hereinabove. The first appeal there against has been dismissed.

(3.) During course of arguments, counsel for appellant submits that defendant No.1 filed a civil suit for specific performance on the basis of his agreement to sale dtd. 27/8/1996, although, the civil suit was dismissed by the trial Court. However, the first appeal No.146/2005 is pending before the High Court. Counsel for appellant submits that in case, appellant succeeds in first appeal and decree for specific performance is passed in his favour, the impugned decree for permanent injunction would become redundant, therefore, this second appeal be heard and decided with the pending Civil First Appeal No.146/2005.