MOTI RAM Vs. POONMA RAM

JUDGEMENT

(1.) THIS appeal has been filed by the plaintiff against the judgment and decree of the learned Lower Appellate Court, District Judge, Balotra dated 28. 5. 84, accepting the appeal against the judgment and decree of the learned Munsiff Magistrate, Barmer dated 19. 12. 80, and thereby dismissing the plaintiff's suit for declaration and possession.

(2.) THE facts of the case are, that on 18. 7. 75, the plaintiff filed the present suit, alleging inter-alia, that the property described in para-1 of the plaint belongs to the plaintiff, which has been shown by marks "a B C D E F G" in the site plan, and is in possession of the plaintiff for last 30 years. According to the plaintiff, four rooms are there on the property. Out of this, the portion marked by red colour was on rent with Joga Ram, and a fire broke out. Likewise, a body of the motor vehicle of the plaintiff did lie there, and the property is being used for storing fodder, and tethering cattle. It was also pleaded, that on the portion marked by "f E D", stone slabs were erected, while fencing was there in some portion of "a B C", and in some portion, brick wall was erected, which has got dilapidated, and remainants are there. It is then pleaded, that on 30. 4. 74, the defendants committed trespass over the land, for which, FIR was lodged in Police Station on 30. 4. 72, and an application was also filed to Dy. S. P. on 1. 5. 72, whereupon challan was filed under Section 145 Cr. P. C. on 2. 5. 72, and the land in dispute, being "a B E F" was attached by the S. D. O. on 5. 5. 72. However, thereafter, the learned S. D. O. found himself to be not in a position to decide the question of possession, and directed the parties to have their rights adjudicated by civil court. Hence the suit has been filed. THE land is in attachment, but since is under illegal possession of the defendants, prayer for possession has also been made. Inter-alia with these averments, a decree for declaration of title, and possession has been prayed for.

(3.) THIS appeal was admitted on 28. 11. 84 by framing the following substantial questions of law: " (1) Whether the learned District Judge was in error in holding that the suit filed by the plaintiff on the basis of mere possession without having a title as purchaser from the Jagirdar as tenant was not maintainable after the period of six months under the provisions of Specific Relief Act. (2) Whether in the circumstances of the case, the learned District Judge was right in reversing the findings of the learned trial Court without considering the evidence of the defendants witnesses D. W. 2, D. W. 6 and D. W. 7 relating to possession and the document Ex. A-2 and the sale-deed dated 6. 2. 56 relating to measurement of the property in dispute. "