BHEEKAM CHAND Vs. ISMAIL

JUDGEMENT

(1.) This Second Appeal No. 263/1993 filed by the plaintiff-appellant on 30-11-1993 has now come up for admission after having been dismissed in default and restored thrice over by this Court. This appeal has been submitted against the judgment and decree dated 16-8-1993 passed by the Civil Judge, Ratangarh in Civil Appeal No. 14/1990 whereby the learned Judge dismissed the appeal filed by the plaintiff-appellant against the judgment and decree dated 12-8-1983 passed by the Munsif, Sujangarh dismissing Civil Suit No. 105/1980 (116/1974) filed by the appellant seeking perpetual injunction against the defendants for restraining them from dispossessing him from the suit property.

(2.) Brief facts relevant for the present purposes are that the plaintiff-appellant filed a suit seeking perpetual injunction against the defendants-respondents on 17-5-1974 on the averments and allegations that the property in question described in para 1 of the plaint was of the ownership and possession of the plaintiff, in which, he was residing for last 14 years as owner and has acquired title by way of adverse possession. The plaintiff has spent substantial amount on the repairs and renovation of the house and about a year back he spent about Rs. 4,000/-. The defendants-respondents were living at Secunderabad (South Hyderabad) but were the permanent residents of Ladnu. They have no connection with the house in question but joining conspiracy with one Jhabar Khan-petitioner-writer, and Noor Mohammed -compounder, they were seeking to forcibly dispossess him and were extending threats. Firstly the threat was extended on 12-5-1974 and thereafter false police proceedings were sought to be taken which had endangered the legal rights of the plaintiff and therefore, they be restrained by way of perpetual injunction, not to forcibly dispossess him.

(3.) The defendants-respondents in their written statement denied the rights claimed by the plaintiff and submitted that they were the owners of the house inasmuch as the patta of the house in question was issued in the name of their father Chhotu and uncle Ganpat. After the death of their father, the defendants acquired rights over his share in the house whereas the share of Ganpat was succeeded by Suleman, who sold his share under a registered sale-deed dated 11-3-1970 to the defendants and since then they were in possession of the entire house as owners. When the defendants were required to move out with families in relation to their business, in one portion they kept their belongings and rest of the house was let out to Noor Mohammed s/o Didar Bux on 9-11-1971 on a rent of Rs. 25/- per month. It was alleged that Noor Mohammed sublet the property to the plaintiff on Deepawali of the year 1973 and since then only the plaintiff was in possession of the house. This fact came to the notice of the defendants in May, 1974 on their visiting Sujangarh. Noor Mohammed was asked to deliver possession of the properly and to pay the due rent, but he failed to comply and, therefore, a suit was filed for recovery of rent and eviction which was decreed on 27-11-1974. The defendants asserted that they never attempted to forcibly dispossess the plaintiff. It was also alleged that when the plaintiff has sought the decree for perpetual injunction on the basis of adverse possession, then, until a declaration about the ownership was obtained, injunction could not be issued.