SWATANTRA KUMAR JAIN Vs. MOTYA BAI AND ORS.

JUDGEMENT

(1.) THIS first appeal under Section 96 CPC has been filed against the judgment and decree dated 5.4.91 passed by Additional District Judge No. 7, Jaipur City in Civil Suit No. 35/88 whereby the suit of the plaintiff -appellant for possession has been rejected by the trial court.

(2.) THE short facts of the case leading to filing of this appeal are that plaintiff appellant instituted a suit with the averments that plot No. 146 (New No. 23) in Govind Nagar Extension Scheme was allotted to him on 8.5.80 by Sri Govind Grih Nirman Sahkari Samiti Ltd. Amer Road, Jaipur. The appellant deposited Rs. 4,500/ - towards allotment price and transfer fee has also deposited. Possession of the plot has also been handed over to him on the same day. Earlier the Plot No. 146 was allotted to Prem Lata Jain who has surrendered plot and thereafter plot has been allotted to the appellant plaintiff. The appellant got one Kothri constructed in the plot and on intervening night of 15.5.80 and 16.5.80, respondent No. 1 has forcibly dispossessed him hence suit for possession has been filed. The respondent has filed written statement with the contention that he is in possession of the property from more than 12 years and he has purchased the property from Manmohan and further contention was raised that earlier a suit under Section 6 of the Specific Relief Act has been filed which was dismissed, hence the suit is barred by res judicata. On the pleadings of the parties, the following issues have been framed: -

(3.) THE contention of the appellant is that admittedly appellant is the owner of the property and issue No. 1 has been decided in his favour in spite of this suit for possession has been dismissed. Earlier the suit was dismissed only on the ground that plaintiff could not prove the dispossession of intervening night of 15 -16.5.80 but at that time also, the court has found that defendant is in possession since 1978 -79 and no plea of adverse possession has been brought on record, hence when the appellant is the owner of the property, he can bring the suit for possession against the trespasser and court below has erred in dismissing the suit on the basis of finding on issue No. 4 which is in relation to possession only. There was no need to examine Prem Lata Jain as Prem Lata Jain has surrendered the plot in favour of Samiti and thereafter Samiti has allotted the plot to the appellant, hence the suit be decreed.