HASAN ALI Vs. HAFIZ MUSTAK ALI

JUDGEMENT

(1.) THIS is a defendant's civil second appeal against the judgment of District Judge, Tonk, confirming the judgment and decree of Mun-siff Magistrate, Malpura, passed on 28. 8. 80.

(2.) THE respondent, hereinafter to be referred as plaintiff, filed a suit for possession in the court of Munsiff cum Judicial Magistrate, Malpura, against Hazi Akbar Ali (defendant No. l since deceased), Hasan Ali (defendant No. 2) and Abdul Hamid defendant No. 3 (since deceased and represented by appellants No. 2 to 6 ). THE suit was based on the allegations that in ward No. 5, Mohalla Saidan, Malpura there was a property exclusively belonging to defendant No. l Hazi Akbar Ali, details of which were given in para 1 of the plaint. It was further alleged that Hazi Akbar Ali sold the said property to the plaintiff for a consideration of Rs. 1000/- by a registered sale deed dated 12. 2. 69 and the sale deed was handed over to the plaintiff. On that date the plaintiff was made owner of the property and it was mentioned in the sale deed that possession may be handed over to the plaintiff. It was further alleged in the plaint that when plaintiff demanded possession from defendant Akbar Ali then he refused to handover the possession and in collusion with defendants No. 2 and 3 namely, Hasan Ali and Abdul Hamid retained possession of the disputed property. It was also alleged that defendants No. 2 and 3 have no concern whatsoever in the disputed house and they are trespassers on the property in dispute. Since the defendants had not handed over the possession, it had become necessary for the plaintiff to file the suit for possession. It was also alleged that the cause of action accrued to the plaintiff on 12. 2. 69 and on every day thereafter. THE plaint was got amended by the plaintiff lateron.

(3.) IN support of his contention, Mr. Lodha learned counsel for the appellant pointed out that in the written statement plea of limitation has been taken and in para 1 it has been mentioned that the defendants have become owners and that is enough. He also pointed out that under the proviso to subsection (5) of Section 100 C. P. C. this court can allow any other question to be argued, even though it has not been included in the questions framed under subsection (4 ).