Mahesh Narain Shukla, J. - (1.) This is a defendant's second appeal arising out of a suit for declaration and injunction, and also for possession which was dismissed by the trial court but the decree was set aside in appeal and the lower appellate court decreed the plaintiff's suit. Hence, the defendants have come up in second appeal to this Court. The facts leading to this second appeal lie within a short compass. The plaintiffs alleged that they were the owners of the property shown in the site plan in the plaint, that the land in suit was in front of their house in which a Kachcha cattle trough was built and pegs were fixed, that the land was being used both as their sahan for passage to their houses and also for tethering cattle and keeping firewood etc. since the time of their ancestors and was appurtenant to their houses. It was further alleged that the defendants had started unlawfully interfering with the plaintiffs possession & in those circumstances proceedings u/S. 145 CrPC were commenced which concluded in favour of the defendants on the 23rd March 1962. The criminal court found that the defendants were in possession and hence passed an order u/S. 145 CrPC in their favour. They were accordingly held in possession of the property.
(2.) The present suit was filed on the 7th April, 1962. A look at the plaint reveals that the plaintiff's suit was found ed on alternative pleadings, it was based firstly on S. 9 of the Specific Relief Act and in the alternative on title derived from long possession and user, in other words on possession title.
(3.) It was contended on behalf of the appellants that the court below erred in law in decreeing the plaintiff's suit and that the suit as framed was not competent and it could not succeed in law. The first submission made on behalf of the appellant was that a suit u/S. 9 of the Specific Relief Act was not competent at the instance of a party against whom an order had been passed u/S. 145 CrPC. For that proposition reliance was placed on two decisions of the Calcutta High Court (See - -L. Moore v/s. Monoranian Guha ( : 12 CWN 696) and Azimuddin Ahmad v/s. Alauddin Bhunja ( : 22 CWN 931). As against these authorities the learned counsel for the respondents referred to a decision of this Court in Kunwar Singh v/s. Damodar Singh ( : AIR 1949 Alld. 203) and contended that a suit u/S. 9 of the Specific Relief Act was maintainable by a party against whom an order u/S. 145 CrPC was passed.;