CHHAGAN LAL Vs. JITU

JUDGEMENT

(1.) THIS appeal under Section 100 CPC is directed against judgment and decree dated 07.08.2008 passed by Civil Judge (Junior Division), Kapasan as upheld by appellate judgment and decree dated 04.11.2008 passed by District Judge, Chittorgarh. The appellants -plaintiffs filed suit for permanent injunction seeking restraint against the respondents -defendants from raising construction over the disputed site without partition and not to dispossess them from the joint possession. The suit was inter alia based on the claim that the disputed 'Guwari' was joint ancestral property and, by way of partition 40 years back, the said Guwari fell in the share of father of the plaintiffs and defendants, who were brothers and one more Guwari fell in the share of the 4th brother. The defendants were seeking to raise construction on the said Guwari and they had dug foundation for the said purpose and such construction would result in their dispossession from the said Guwari.

(2.) A written statement was filed by the defendants disputing the claim that the property in question was joint and, inter alia, indicating that the plaintiffs have no right, title or possession on the suit property and the defendants have the right to raise construction.

(3.) FEELING aggrieved by the dismissal of the suit, the appellants approached the first appellate court, who by its impugned appellate judgment and decree, came to the conclusion that as PW -2 Kishan Lal admitted in his cross -examination that the defendants were residing in the Guwari for 40 -50 years, it was proved that the plaintiffs were not in physical possession of the suit property and reiterated the finding of the trial court that in absence of possession, the simple suit for permanent injunction was not maintainable. Consequently, the first appeal filed by the appellants was also dismissed.