MOHAMMAD SHAKIR Vs. KALKA PRASAD

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 21 May 1938 of the Second Civil Judge of Meerut by which he partly affirmed and partly varied the judgment and decree dated 4 February 1938 of the Third Additional Munsif of Meerut. The plaintiff has made the appeal and the defendant has filed cross- objections. In qasba Meerut there is a khewat No. 197, area 26 bighas 12 biswas. In this khewat is included a plot No. 5142 measuring one bigha four biswas. In or about the year 1930 Kalka Prasad, the defendant, purchased 1 bigha 13 biswas land in this joint khewat and another person named Sheo Prasad in the year 1932 purchased 17 biswas seven bis-wansis share in this joint khewat. By sub-sequent arrangement this 17 biswas seven biswansis share of Sheo Prasad is also now vested in Kalka Prasad. The remaining share in the khewat is vested in the plaintiffs Mohammad Shakir and others. It will thus be seen that Mohammad Shakir and others hold by far the largest interest in this joint khewat and the area owned by Kalka Prasad and Sheo Prasad is only a fraction of the joint khewat.

(2.) In the year 1930, soon after his purchase, Kalka Prasad took possession of plot No. 5142 and on this plot be planted a large number of trees and he established a garden and nursery over it. Sheo Prasad, when he purchased the property in 1932 also began to assert rights over this plot and as a result two suits were instituted, No. 979 of 1932 by Kalka Prasad against Sheo Prasad for an injunction restraining Sheo Prasad from interfering with Kalka Prasad's possession over plot No. 5142, and the other suit was No. 1002 of 1932 by Mohammad Shakir and others against Kalka Prasad and Sheo Prasad restraining them from interference with the possession of Mohammad Shakir and others over the said plot. Mohammad Shakir and others alleged in the plaint-that the plot was in their exclusive possession and that Kalka Prasad without any right had taken unlawful possession of the plot and had planted trees and a garden over it. They accordingly prayed for exclusive possession of the plot and for an injunction directing Kalka Prasad to remove his trees and garden. Both these suits were tried together and were finally decided by this Court in second Appeal No. 1534 of 1933 and No. 309 of 1934. The judgment of this Court is dated 7 April 1936 and it is to the effect. that Kalka Prasad had taken peaceful possession of plot No. 5142 in the year 1930 and he had since been in possession of it by planting a garden and trees. This Court therefore held that Mohammad Shakir and others were not entitled to an exclusive possession of the plot against Kalka Prasad and they were not entitled to an injunction directing Kalka Prasad to remove the trees and the garden and Kalka Prasad was entitled to maintain his garden and to remain in possession of the property, but Mohammad Shakir and others were entitled to a decree for joint possession in terms of Order 21, Rule 85, Civil P.C. The claim of Kalka Prasad against Sheo Prasad was decreed. The result of this litigation was that the plaintiff and others and Kalka Prasad and Sheo Prasad were declared to be the co-owners of plot No. 5142 and Mohammad Shakir and others were also given a decree for joint possession over the said plot but the claim of Mohammad Shakir and others for a direction of the removal of the trees was rejected and it was held that Kalka Prasad had been since 1930 in peaceful possession of the property and was entitled to maintain his garden and trees.

(3.) Some time, either during the pendency of this litigation or subsequent to its termination, Kalka Prasad constructed a small building in plot No. 5142. According to the inspection note of the lower appellate Court this building is double storeyed. There is a room and verandah on the ground floor and there is a room on the first floor. The building occupies land six by six yards and it is used for the purpose of storing seeds and for the residence of those who were employed by Kalka Prasad to look after his garden and nursery There was some controversy as to the time when this construction was made, but it has now been settled by findings of both the Courts below that they were made after the termination of the litigation mentioned above. On 4 August 1936, Mohammad Shakir and others raised an action in the Court of the Munsif of Meerut mainly for the demolition of this building and incidentally for injunctions restraining Kalka Prasad from maintaining his garden and trees and from making further constructions on plot No. 5142. This claim was partly decreed and partly dismissed by the Munsif and on appeal the decree of the Munsif has been partly varied and partly affirmed. The lower appellate Court differing from the trial Court has held that the plaintiffs Mohammad Shakir and others are not entitled to secure demolition of the building made by Kalka Prasad, but the lower appellate Court in concurrence with the trial Court has given to the plaintiff an injunction limited to this, that Kalka Prasad is not permitted to put up fresh constructions in the said plot. As I have said before the plaintiff has made a second appeal to this Court and the defendant Kalka Prasad has filed cross objections and the two questions which arise for my consideration are : (1) whether Mohammad Shakir and others are entitled to have the building demolished, and (2) whether the injunction which has been granted by the lower appellate Court; to Mohammad Shakir and others was erroneous in the circumstances of the case?