MOHD. ANIS Vs. NANHEY KHAN

JUDGEMENT

(1.) The plaintiff-appellant filed a suit being Original Suit No. 397 of 1972 for the removal of certain constructions and for a permanent prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff over the property in dispute. Relief of permanent injunction restraining the defendants from digging the land and from obstructing the drain was also prayed for.

(2.) The suit was filed with the allegation that the plaintiff along with the defendant no.5 was the owner in possession over the plot in dispute by means of sale deeds dated 18.2.1971 and dated 22.7.1971. It has been alleged that the sale by means of which the property was transferred to the defendant no.5, Mehdi Hasan was actually in favour of the plaintiff and that Mehdi Hasan was only a 'Benamidar.' The property was bought from the personal resources of the plaintiff and to obviate any confusion the respondent no.5, Mehdi Hasan had entered into an agreement on 30.6.1971 by which it was agreed that the property would belong to the plaintiff as well. The defendants Ist Set had contested the suit and had stated that the suit itself was not maintainable, it being barred by the provisions of Order 23, Rule 1 C.P.C., as earlier the defendant no.5, Mehdi Hasan himself had also filed Original Suit No. 370 of 1971 with the very same relief. It was stated that when Suit No. 370 of 1971 was withdrawn on 9.11.1975, no permission for filing a fresh suit was obtained. The Trial Court dismissed the suit filed by the plaintiff/appellant, observing that the plaintiff had not been able to establish his title over the disputed property. The First Appellate Court however allowed the appeal and decreed the suit, observing that the suit was maintainable and that the plaintiff was a co-sharer in the property in question along with the defendant no.5, Mehdi Hasan.

(3.) The instant second appeal has been filed by the defendants Ist set. The appeal has been heard on the substantial questions of law at Serial Nos. 2, 3, 4, 5 and 6 which are being reproduced herein as under: