SHYAM SINGH Vs. BHANU PRAKASH SAXENA AND ORS.

JUDGEMENT

(1.) Both these second appeals under Section 100, CPC have been filed against the judgment and decree dated 20-10-1993 passed by Addl. District Judge, No. 7, Jaipur City, Jaipur in Civil Regular First Appeal Nos. 19/91, 18/91 reversing the judgment and decree dated 4-2-91 passed by Additional Civil Judge, No. 4, Jaipur City, Jaipur in Civil Suit Nos. 763/92 and 764/92 by which the suit has been dismissed. Since both these appeals raise common question of law and facts, they are decided by this common judgment. For convenience, the facts are taken from S.B. Civil Second Appeal No. 266/93.

(2.) The brief facts leading to filing of this second appeal are that the plaintiff-respondent filed a civil suit for injunction and demolition of constructions made by the defendant on the plot in question. It was alleged in the plaint that property has been purchased and possession of the property was also handed over to the plaintiff but in May, 1982 when plaintiff went on the plot, it was found that a room was constructed and a small gate has also been fixed, hence the suit for permanent and mandatory injunction has been filed. The contention of the appellant before the Court below was that the plaintiff is not in possession of the suit property, suit is not triable by civil Court. On the pleadings of the parties, four issues have been framed and the Court below has held that the civil Court has no jurisdiction to entertain the suit and also held that plaintiff is not in the possession of the suit property. The suit for injunction is not maintainable as he has not prayed for the possession of the property and suit has been dismissed but the appellate Court has held that as the plaintiff is the owner of the land and possession goes with the ownership, he is entitled for decree of permanent injunction and it was held that the civil Court has jurisdiction to entertain the suit and suit has been decreed, hence this appeal.

(3.) The appeal has ben admitted on the following substantial questions of law vide order dated 25-11-1993 :