- (1.) N. L. Ganguly, J. The second appeal is directed against the judgment and decree dated 25-7-1975 passed by the Civil Judge, Saharanpur dismissing the plaintiffs appeal against the judgment and decree of the trial Court dated 28-10-1970.
(2.) THE plaintiff-appellants had filed a suit for declaration that they are the owners of the property in suit and are in possession thereof. THE trial court was pleased to decree the suit declaring the plaintiff- appellants to be the owner of the property in suit but the declaration regarding possession of the plaintiffs was refused. It was observed in appeal that the plaintiffs may recover possession under Section 6 (4) of the Specific Relief Act. Thus both the judgments of the courts bellows are subject to consideration in the second appeal. It is the admitted case between the parties that one Khursheed Alam, real brother of Sayeed Ahmad, had migrated to Pakistan and the property in question was taken over by the Custodian of Evacuee Property. The entire property including the share of Sayeed Ahmad was taken over by the Custodian. Sayeed Ahmad remained in India. He had filed objection against the taking over of the entire premises by the Custodian and there was a compromise between the Custodian and heirs of Sayeed Ahmad. The share of Sayeed Ahmad in premises No. 8/2256 also vested to the Custodian. The property vested in the Custodian was auction sold in 1955. The other property, which was not of the Custodian was not auctioned. Later on in 1966 the Custodian again auctioned the property in dispute which was purchased by the plaintiff-appellants. The plaintiff-appellants' names were duly mutated in the Municipal record on the basis of auction sale in his favour. One Piarey Lal was in possession of the disputed premises and he vacated the same in August, 1965. The plaintiffs took over possession of the same in February, 1966, and also on 12-8-1968 obtained the sale-deed in respect of the disputed premises from one Gurditta Mai, who had allegedly purchased the same in earlier auction of 1955. By the auction sale the plaintiffs and the sale- deed from Gurditta Mal, the plaintiffs became the owner of the property in question.
(3.) THE respondent Bhagwan Dass filed original suit No. 245 of I960 under Section 6 of the Specific Relief Act for possession over the suit property alleging that the plaintiffs had forcibly entered into the same and dispossessed Bhagwan Dass in May, 1966. THE suit of Bhagwan Dass under Section 6 of the Specific Relief Act was decreed. THE plaintiffs being threatened of dispossession due to the decree of Bhagwan Dass in suit under Section 6 of the Specific Relief Act filed the present suit for declaration that the plaintiffs are in possession and owner of the premises in suit and subsequently at the appellate stage they also added the relief of permanent injunction restraining the defendant from taking over possession by dispossessing the plaintiffs from the premises in question. In appeal before the court below the controversy raised by the contesting respondent was that the decree under Section 6 of the Specific Relief Act in favour of Bhagwan Dass was first to be executed and possession given to him. There was no dispute about the sale-deed of the plaintiffs from Gurditta Mal on 12-8-1968 and auction sale taken from the Custodian in 1965. The title of the plaintiffs was fully established.;