USHMAN GANI & ORS Vs. YUSUF & ORS

JUDGEMENT

(1.) Appellant-plaintiffs have laid this second appeal to challenge the impugned judgment and decree dated 05.05.2009 passed by learned Additional District Judge (Fast Track) No.1, Hanumangarh (for short, 'learned Lower Appellate Court'), whereby the learned Lower Appellate Court has affirmed the judgment and decree dated 20.02.2003 passed by learned Civil Judge (Junior Division), Hanumangarh (for short, 'learned trial Court').

(2.) The facts, as emerge out of the perusal of record, are that appellant-plaintiffs filed a suit for possession and perpetual injunction against respondentdefendants alleging therein that his grand-father, Shri Rukandeen, was having a pattasud house No.376, Mohalla Kalalan, Ward No.31, Hanumangarh Town. In the plaint, it is also averred that defendnat No.3, Nathu Khan, never had cordial relations with his father, i.e. grand father of the appellants, and therefore, defendant No.3 left the house during his lifetime for his permanent abode at Bikaner. It is further averred in the plaint by the plaintiffs that their grand father expired in December, 1979 and since then they are in possession of property owned by the grandfather. In the plaint, it is pleaded by the plaintiffs that their grandfather and father of defendant No.1, Barkat Khan, were cousins and as he was not having any accommodation, their grandfather gave shelter by allowing him to occupy southern portion of the house on the premise that he would vacate the same as and when asked to do so. It is also borne out from the plaint that when the plaintiffs came to know that the defendants No.1 & 2 have applied for regularisation of the property, which was given by their grandfather to father of defendant Nos.1 & 2, before the Municipality, Hanumangarh, they made contact with defendants No.1 & 2 to hand over the vacant possession of part of the house, which they denied.

(3.) In the return, defendants No.1 & 2 filed written statements and averred that the patta produced by the plaintiffs is forged and plaintiffs are not having any title over the property in question. The defendants have also averred in the written statement that property has not been given on licence to Barkat Khan and, on the contrary, Barkat Khan was having old possession over the property. The defendants further averred in the written statements that they are having title over the property by way of adverse possession. It was specifically pleaded in the written statement that earlier a suit of same kind was instituted by Rukadeen and same has been dismissed.