GAFFAR KHAN Vs. SHABOO

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree dated 03.08.2013, passed by the Additional District Judge, Dholpur upholding the judgment and decree dated 21.12.2011, passed by the Additional Civil Judge (Jr. Division), No. 2, Dholpur whereby the appellant -plaintiff's suit for declaration, permanent and mandatory injunction has been dismissed. The facts of the case are that the appellant -plaintiff (hereinafter 'the plaintiff') had filed a suit for declaration, permanent and mandatory injunction against the respondent -defendants (hereinafter 'the defendants'). In the plaint, it was stated that there was a public chowk at Mohalla Hathivan Dashera Road, Dholpur used by the plaintiff. On the northern side of the public chowk, there existed house of defendant Nos. 2 & 3 land and on the western side, there existed the land of one Mohd. Shareef. On the southern side of the chowk there existed the house of defendant No. 1 and on the eastern side, a public way. On the eastern side of the house of the defendant No. 1, Smt. Shaboo house, there existed an Imambada wherein Tajiyas were kept and other public functions and marriages took place. It was submitted that there was no doors and windows of defendant Nos. 2 & 3 opening towards disputed chowk. The plaintiffs submitted that the defendants illegally sought to take possession over the public chowk and had started raising certain construction thereon without seeking permission from Municipal Board, Dholpur. Therefore, the plaintiff prayed that the defendants be restrained from trespassing over the public chowk and from raising any construction thereon.

(2.) ON notice, the defendant No. 1 filed written statements of denial with the prayer to dismiss the suit. The written statement of denial was also filed by the respondent Nos. 2 & 3 denying that there existed any public chowk and submitted that the property in dispute was purchased by them by a registered sale -deed on 18.03.1989 from one Abdul Majid. On the basis of the pleadings of the parties, the learned trial court framed six issues.

(3.) HEARD the counsel for the plaintiff and perused the impugned judgments and decree passed by this courts below.