UMASHANKAR TATIA Vs. HARPAT RAJ TATI

JUDGEMENT

(1.) This appeal under Order 43, Rule 1(r) Code of Civil Procedure (for short, "CPC") portrays an unsavory legal battle between father and son duo. The appellant (plaintiff son) has laid this appeal assailing the order dated 17th September, 2013 passed by the Additional District Judge No. 2, Sriganganagar (for short, "the learned trial Court"), whereby the learned trial Court has declined the relief of temporary injunction to him in a suit for declaration and perpetual injunction. In the suit, which was initially filed under Order 33, Rules 1 & 2 CPC, appellant-plaintiff claimed the relief that he may be declared owner of House No. 1081 measuring 30 X 55 feet situated at Agrasen Nagar, Sriganganagar. A prayer for perpetual injunction was also incorporated for restraining the respondent-defendant to take possession of the house by unlawful means. Learned trial Court on consideration found that the appellant is not an indigent person and accordingly directed him to pay requisite Court fee.

(2.) In the suit, it was, inter alia, averred by the appellant-plaintiff that his mother, Smt. Indravati Devi, purchased the disputed house from Bhartiya Grih Nirman Shkari Samiti Ltd., Sriganganagar, vide allotment letter dated 23rd April, 1986 and subsequently housing society executed a registered sale-deed in her favour on 26th June, 2008. It is also averred in the plaint that since purchase of house, the appellant is residing in the said house as its owner, which was within the knowledge of his mother, and his possession is hostile/adverse to the rights of the true owner of the house since 1986. According to the version of the appellant, he was asked to vacate the premises by the respondent-defendant and others, but he resisted the same and continued enjoyment of possession of the house and finally in January 1999 his mother and the respondent were forcibly evicted from the house. With all these averments, the appellant has claimed ownership of the house on the strength of principle of adverse possession by asserting that he is in possession of the house for last more than 12 years. In the plaint, appellant has specifically mentioned that his mother passed away on 27th August, 2008 and the alleged Will executed by his mother in favour of respondent on 30th June, 2008 is a spurious document as at the time of death, she was physically and mentally incapable to execute testamentary instrument. With these averments, he has sought relief that he may be declared as owner of the house for enjoying adverse possession over it and also claimed perpetual injunction that respondent may not dispossess him by resorting to unlawful means.

(3.) Along with the plaint, the appellant also filed an application under Order 39, Rules 1 & 2 CPC for temporary injunction reiterating the averments of the plaint.