RAFIQ AHMED Vs. RAMJANI

JUDGEMENT

(1.) THIS appeal under Section 96 CPC arises out of the judgment and decree dated 1. 6. 1984 passed by the learned District Judge, Sawai Madhopur, whereby the learned Judge has decreed the plaintiffs' suit.

(2.) PLAINTIFF Ramjani filed a suit against the defendants for declaration and possession on 0. 1. 1975. On 5. 5. 1977 the plaintiff filed an application for amendment in the plaint, which, after hearing counsel for the parties, was allowed vide order dated 22. 7. 1977 and accordingly the plaintiff filed amended plaint on 6. 8. 1977. The plaintiff claimed himself to be the owner of the property, viz. , 3 shops and 3 rooms on the floor on the basis of Patta issued on 15. 9. 58. He continued to reside in the rooms. Out of 3 shops, he gave center shop to his father Chand Khan for his residence and let out remaining shops to the tenants. It was averred that his mother died when he was 8 years old and after the death of his mother, his father got married to Smt. Bashiran, defendant No. 2 and out of this wedlock defendants No. 1 and 3 to 7 were born. Feeling aggrieved by the behaviour of his father, due to his step mother, the defendant left his house in 1968 and started living in some other house. The plaintiff averred that his father with an intention to gulp shops in dispute filed a suit No. 180/71 for declaration and permanent injunction in the Court of Munsiff, Sawai-Madhopur, which came to be decided on 27. 9. 73. In that suit, the plaintiff filed written statement and moved an application for requisition of original record containing original Patta, from Municipal Board, Sawai Madhopur. Chand Khan by filing application disclosed the fact that he had mortgaged the disputed shops to one Kanhaiyalal, father of Shri Narain, defendant No. 8 and handed over the Patta to Kanhaiyalal and Kanhaiyalal since died, the original patta be requisitioned from Narayan. During pendency of that suit, Chand Khan expired. After the death of Khan Khan, none prosecuted the said suit and accordingly the trial Court dismissed the suit on 27. 9. 93. It appears that defendant No. 8 also filed a suit for eviction and arrears of rent against the plaintiff defendants No. 1 to 7 in which the defendants No. 1 to 7 challenged the ownership and rights of the plaintiff over the disputed shops and claimed themselves to be in possession thereof in the capacity as owners. In fact, according to he plaintiff, the defendants had no concern with the shops in dispute. The plaintiff requested the defendants on several occasions to hand over physical possession of the shops in dispute to him, but defendants did not pay any heed. In the circumstances, therefore, the plaintiff had no option but to file the present suit.

(3.) THE next argument of Mr. Mehta is that there is an over- whelming evidence to show that Chand Khan and Ramjani were living jointly. It has also come in evidence that Chand Khan applied for permission to raise construction. he was an old and infirm person and therefore, merely by grant of permission to raise construction or issuance of patta in favour of Ramjani, it cannot be said that Ramjani has become owner of the property belonging to Chand Khan, unless and until the property is given to the plaintiff by owner himself. It has been argued that learned trial Court has not discarded the defendants' evidence, but on the contrary it has held that properties in questions appears to have been constructed by Chand Khan and Ramjani jointly. Some old the witnesses have stated that Chand Khan was an old man and therefore Ramjani used to help him. Thus, the trial Court has committed serious error in mis-interpreting the statements of the defendants' witnesses and has erred in drawing an erroneous inference from the statements to the effect that Ramjani was the owners of the disputed property and that he constructed the suit premises.