NAGAR NIGAM Vs. ASHOK SHARMA

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 16.02.2009 passed by Additional District Judge No. 1, Jodhpur, whereby, the judgment and decree dated 25.09.2008 passed by Additional Civil Judge (Junior Division) No. 2, Jodhpur has been upheld.

(2.) THE facts in brief may be noticed thus: the respondents -plaintiffs filed a suit for permanent injunction with the averments that the suit property was of their ownership and possession, which was purchased by them by registered sale deed from Amna legal representative of Abdul Mazid through her power of attorney holder Taj Mohammed; one Jagdish Singh had instituted proceedings under Section 145 Cr.P.C. against the predecessor in interest of the plaintiff, wherein, the Additional Collector and Additional District Magistrate (City), Jodhpur by his order dated 26.03.1977 directed the officer -in -charge of the Police Station, Ratanada to keep possession till decision of the competent court and was appointed receiver; despite the said order defendant No. 2 did not take possession and one Jai Singh trespassed on the said property and thereafter filed a suit for permanent injunction against defendant No. 2, which suit came to be decreed by the trial court on 18.05.2005 and while accepting the possession of Jai Singh, temporary injunction was passed by the trial court; as the property was in possession of Jai Singh, the plaintiffs filed suit for declaration, possession and permanent injunction against Jai Singh, which was decided by the Court of Additional District Judge No. 2, Jodhpur and in execution of the said decree, the possession of the suit property was handed over to the plaintiffs on 04.05.2007 and, as such, in pursuance to the decree, the plaintiffs were in possession of the suit property w.e.f. 04.05.2007; the defendant No. 1 was threatening the plaintiffs and not permitting them to raise construction when they have no right to do so; the plaintiffs are entitled to seek permanent injunction against the defendants; in view of the above facts, it was prayed that permanent injunction be issued against the defendants.

(3.) THE trial court framed four issues; after oral and documentary evidence was led by the plaintiffs, the defendants led oral evidence and after hearing the parties the trial court came to the conclusion that the Court of Additional District Judge No. 1, Jodhpur treating the plaintiffs as owners of the land directed delivery of possession to the plaintiffs, whereafter the Additional Collector, Jodhpur dropped the proceedings under Section 145 Cr.P.C., which order was marked as Exhibit -11; the possession of the plaintiffs was proved from the report of the Patwari as Exhibit -13 and no documentary evidence was produced by the defendants questioning or disputing the ownership of the plaintiffs; the possession of the plaintiffs was proved from the record of the execution proceedings; the suit even in absence of notice under Section 80 CPC was maintainable and, consequently, decreed the suit filed by the plaintiffs and restrained the defendants from interfering with the possession and the construction being raised by the plaintiffs.