HEERALAL Vs. TULSIRAM

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC is directed against the judgment and decree dated 17.12.2008 passed by Additional District Judge No. 1, Jodhpur, whereby, the appeal filed by the appellant against the judgment and decree dated 19.12.2005 passed by Additional Civil Judge (Junior Division) No. 7, Jodhpur, has been dismissed.

(2.) THE facts in brief may be noticed thus -the plaintiff Tulsiram filed a suit for declaration and permanent injunction against appellant Heeralal and the Urban Improvement Trust, Jodhpur (for short 'UIT') and also impleaded Dalpat Singh pertaining to plot No. 106 at Bhagat Ki Kothi, Jodhpur admeasuring 75 X 75 feet with the averments that the plaintiff and his brother Dalpat Singh had old possession over the suit plot No. 106 and based on old possession the Collector, Jodhpur allotted the suit plot by regularizing the same to the plaintiff and Dalpat Singh; a license dated 07.03.1981 was issued to plaintiff and Dalpat Singh and the cost of plot and lease money was deposited; it was stated in the plaint that a plot was allegedly allotted to defendant Heeralal by the UIT and Heeralal filed Civil Original Suit No. 225/1977 seeking possession of suit plot No. 106, which was illegally got decreed ex -parte on 05.07.1978 and when on 17.10.1978 defendant Heeralal alongwith Court Ameen visited the suit plot for taking possession, the plaintiff came to know about the ex -parte decree, against which, appeal was filed by the plaintiff. However, the appeal was decided on 01.08.1980 as not maintainable and it was left open for the plaintiff to file separate suit for safeguarding his civil rights and, therefore, the present suit was filed seeking declaration that the plaintiff and defendant No. 3 were owners of the suit plot, permanent injunction against the UIT restraining it from canceling the allotment and lease; not to dispossess the plaintiff and defendant No. 3 in pursuance to decree dated 05.07.1978 obtained by defendant Heeralal; permanent injunction restraining allotment and lease of the suit plot to anyone and not to dispossess the plaintiff without due process of law.

(3.) DEFENDANT No. 2 -appellant Heeralal filed his written statement; denying the possession of plaintiff and defendant No. 3 on plot No. 106, it was claimed that the suit plot was not plot No. 106 or 106 -A in fact they are plot No. 106 only admeasuring 75 X 75 feet, which was allotted to him by the UIT on 20.10.1975 and the UIT only gave possession of the half plot and, therefore, for seeking possession of rest of the half plot, the suit was filed, which has been decreed on 05.07.1978; the appeal was filed by the plaintiff against the judgment and decree dated 05.07.1978, which has been dismissed and, therefore, the judgment dated 05.07.1978 as become final and, therefore, based on decree dated 05.07.1978 and allotment dated 20.10.1975, the plaintiff was owner of the suit plot and the suit was liable to be rejected.