- (1.) S. K. Phaujdar, J. This appeal is directed against the judgment and decree dated 23-3-96 passed by the 1st Additional District Judge, Mau, in Civil Appeal No. 5 of 1992 arising out of Original Suit No. 51 of 1990. This suit was filed by Shamshul Haq for permanent injunction and the suit was dismissed by the Civil Judge, Mau, by his order dated 20-5-92.
(2.) IT was, the case of Shamshul Haq, according to the plaint, that the house in suit property belonged to Mohd. Yusuf and Mohd. Hasan. The purchase of that proper ty was made in the name of Mohd. Yusuf alone although the fund was joint of Mohd. Yusuf and Mohd. Hasan. From their joint funds a house was raised on the joint property. They created a mortgage of the suit property on 26-6-52 in favour of Salim Ullan for a sum of Rs. 5000. The plaintiff used to take care of Mohd. Yusuf and Mohd. Hasan and they also loved him much. After the execution of the mortgage deed they had made an oral gift of the suit property in favour of the plaintiff and they also put him in possession. The gift was accepted by the plaintiff and he started living in the suit property as the owner and Mohd. Yusuf and Mohd. Hasan had no concern with the suit property thereafter. It was further stated in the plaint that the plaintiff had redeemed the mortgage by paying to Salim Ullah the mortgage money and the right of Salim Ullah on the suit property under the mortgage also extinguished. The plaintiff obtained sanction from the Municipality and made some constructions on the suit property. Mohd. Yusuf was a member of the Municipal Board then and everything was done within his knowledge. The plaintiff also got electricity connection in the premises and his ration card also indicated this very premises against his name. The plaintiff alleged further that he was running a power loom in the suit property and the house tax for the building was also paid by the plaintiff. It was alleged that the defendant No. 1, Jameel Ahmad, was a moneyed man and he was out to harass the plaintiff. He was affraid of Mohd. Yusuf, the donee of the plaintiff. Mohd. Yusuf stealthely took away the original mortgage deed that the plaintiff had taken back from Salim Ullah and there after a fake sale deed without consideration was executed by the defendant No. 2 in favour of the defendant No. 1 and on the basis thereof they were trying to disposses ses the plaintiff. The dispute gave rise to a proceeding under Section 145 Cr. P. C. and accordingly a suit was necessary.
(3.) THE plaintiff prayed for an order of injunction against the defendants so that they may not disturb the possession of the plaintiff over the suit property. It is worth note that the defendant Nos. 3 to 5 were made parties as a measure of abundant precaution. Defendant No. 3 happens to be Mohd. Hasan. The suit was contested by Jameel Ahmad and Mohd. Yusuf. They asserted that only Mohd. Yusuf was the sole owner of the suit property and they also accepted that there had been a proceeding under Section 145 Cr. P. C. and that Mohd. Yusuf had made a sale deed in favour of the defendant No. 1. All other relevant averments in the plaint were denied. It was stated by way of addi tional assertion that the plaintiff was never the owner and occupier of the suit property. The defendant No. 2, Mohd. Yusuf, was the sole owner in occupation of the property and he sold it out of his free will to defen dant No. 1 Jameel Ahmad on a considera tion of Rs. 48,000 and the sale deed was registered on 30-1-1983 and Jameel Ahmad was put in possession thereof. The house number of the suit property in the municipal record was 59. It was being as sessed in the name of Mohd. Yusuf and after the sale it is being assessed in the name of Jameel Ahmad. There had never been any oral or written gift of the suit property in favour of the plaintiff and he had never redeemed the mortgage. The plaintiff had never made any construction on the suit property nor was any permission given to him by the Municipality.;