PANKAJ MITHAL, J. - (1.) HEARD Sri B.N. Agarwal, learned Counsel for the defen­dant-appellants and Sri Mukhtar Alam for the sole plaintiff-respondent.
(2.) THE dispute in the present suit is about a piece of land occupied by a shop which has been shown by letters DEFG in the paint map and admitted to be part of a bigger plot of ABCDEH or HBCE as shown in the plaint map. The plaintiff respondent filed original suit No. 181/1985 against the defendant-appellants for permanent injunction restraining them from intefering in his peaceful possession over the disputed land and in the alternative if he is not found in possession of the same to direct the defendant-appellants to restore possession thereof to him. The suit was filed on the allegations that the land shown by letters ABCDEH or HBCE in the plaint map is the Nazul land.The said land was put to auction and the plaintiff-respondent was the successful bidder and the deposited the bid amount of Rs. 3100/-. On the basis of the aforesaid auction Town Area Kadaura executed registered lease deed dated 28.4.1970 in favour of the plaintiff-respondent for a period of 30 years at the rent of Rs. 25 per annum. The collector authorized the Chairman of the Town Area vide order dated 17.3.1969 to execute the aforesaid sale deed and as such the sale deed is on behalf of the Collector. The plaintiff respondent thereafter got the map sanc­tioned from the Town Area and constructed two shops over half part of the said land. One of the shops shown by letters AGFH is in possession of Ram Pyare as tenant of the plaintiff-respondent. The other shop shown by letters GDEF is the disputed shop. The defendant-respondents have no concern with the said land and the shop but are trying to forcibly grab the same. The defendant respondents contested the suit and alleged that the plaintiff respondent is not the owner inpossession of the disputed land/shop. The plaintiff respondent is not having any valid lease deed of the said land. He never got any map of the shops passed by the Town Area and has not even constructed the shops. The plaintiff respon­dents in fact had executed the deed dated 12.6.1970 in favour of the defendant appellants wherein it was agreed that as the plaintiff respondent is not pos­sessed of sufficient funds, the defendant appellants would construct a shop 16'x6-1/2' and deliver its possession to him and the remaining portion own occu­pied by the shop in dispute shall stand transferred in favour of the defendant appellants on rent of Rs. 90/- per annum and they shall even have the right to get the lease deed of the said portion extended or renewed on expiry of initial period of 30 years of the lease. In accordance with the said deed, the defendant appel­lants constructed two shops and handed over the possession of the shop AGFH to the plaintiff respondent and kept the shop in dispute for themselves.
(3.) THE Trial Court vide judgment and order dated 9.10.1998 decreed the suit holding that the plaintiff respondent is the lawful lessee of the land ABCDEH or BHEC. The defendant appellants are in possession of the land occupied by the disputed shop shown by letters GDEF which is part of the above land and as such they are directed to vacate the same and to handover its possessions to the plaintiff respondent. Against the aforesaid judgment and order for the trial Court, the defendant respondents preferred Civil Appeal No. 80/1998. The appeal too has been dismissed by the lower appellate Court vide judgment and order dated 1.10.2004.Therefore the defendant respondent has preferred this second appeal having lost from both the Courts below.;