HABIB HASANBHAI Vs. ABDULHUSAIN KIKABHAI TRUST

JUDGEMENT

(1.) This appeal under section 100 of the Code of Civil Procedure [herein after referred to as the "Code"for the sake of brevity] is at the instance of the original defendants against whom the respondents-plaintiffs had filed the suit for declaration, possession and for permanent injunction. The case of the plaintiffs in the suit is to the effect that the plaintiff is a trust and its trustees are owners of the suit property. Defendants have started believing themselves to be the owners of the suit property and thus holding the suit property unauthorizedly without any right or title. Therefore, defendants were asked to vacate the suit property and to remove their household articles from the suit property but they did not do so, therefore, legal notice was issued through the advocate on 5.9.1983 but then also, the suit property was not vacated and, therefore, the suit is required to be filed seeking possession by declaring that the defendants have been occupying the suit property unauthorizedly and for permanent injunction restraining the defendants from entering upon the suit property.

(2.) On service of the summons, the defendants came forward with an application under Order 23 Rule 1(4) of the Code stating that on the same facts and on the same allegations that the defendants are in unauthorized occupation of the suit plot, earlier suit being Regular Civil Suit No. 6 of 1975 was filed by the predecessor in title of the plaintiffs and the predecessor in title of the plaintiffs in the said suit filed purshis dated 27.12.1977 at Exh. 20 and had unconditionally withdrawn the suit. Inspite of such unconditional withdrawal of the earlier suit, present suit is filed on the same facts and allegations for recovery of possession of the suit property and, therefore, present suit is barred by the provisions of Order 23 Rule 1(4) of the Code.

(3.) The plaintiffs filed the reply to the said application and stated that the possession of the defendants is not lawful and, therefore, the plaintiffs have right to file the suit and such suit could be filed at any point of time because of the continuous wrong on the part of the defendants. It was stated that the defendants have continued to occupy the suit property unauthorizedly as trespasser and they have got no right to hold the suit property and, therefore the plaintiffs are entitled to seek possession of the suit property.