- (1.) POONAM Srivastava, J. Heard Sri S. Alim Shab, learned Counsel for the appellant and Sri D. C. Mathur, learned Counsel for the respon-dents.
(2.) THIS is plaintiffs second appeal against the judgment and decree dated fo 5. 4. 2008 passed by the Special Judge/additional District Judge, Bijnor, in civil appeal No. 90 of 2007, confirming the judgment and decree dated 20. 9. 2007 passed by the Judge Smali Causes Court, Bijnor, in original suit No. 238 of 2001. ' The dispute is in respect of a house situated in Mohalla-Kaisthan, Kasba and Tehsil Chandpur, District Bijnor. The entire property beionged to one Rajwati w/o Bhukkhan Saran, who sold it on 5. 7. 1940 to Chandu Lal, Raghuvir Saran, Ram Saran and Mangu Lal all sons of Fanda Mai. The plaintiff was the owner of 1/4 share of the aforesaid property, and the same was auctioned in execution pro-ceedings of a money decree. The property was purchased by one Nisar Ahmed son of. Tafazzul Hussain in the auction zsale. The auction purchaser sold the property to Chandir Lal, who subseguently became owner of half portion of the. house. The plaintiff s claim is that even after the auction sale, he continued to be in possession of his portion and thus perfected his right on the basis of adverse possession, therefore, he cannot be evicted from the portion in his occupation. The defendant/respondents contested the suit by filing written statement and also preferred counter- claim for recovery of the possession. The defendant/respondent No. 1 Smt. Neelam Devi purchased the entire house from Chandu Lail, Raghuvir Saran, Ramautarvermaand Krishna Kumarverma, vide sale deed dated 14,9. 1995. It is also brought on record that the partition suit No. 170 of 1995 was instituted at the instance of the appellant, which was dismissed in default on 1. 2. 2001. The plaintiff claimed that the said suit was Jnstituted on wrong lega? advice, therefore, no steps were taken to get the suit restored and subsequently the instant suit for permanent injunction was instituted.
(3.) LEARNED Counsel for the appellant has argued that the plaintiff/appellant had already perfected his right before the present defendant/respondents pur chased the property and, therefore, he became the owner of 1/4 share as he continued to be in occupation within the knowledge of owners and his possession is a hostile possession within the knowledge of real owners and thus the plaintiff perfected his title and he is owner in possession and is entitled for permanent injunction. The trial Court framed a number of issues. The relevant substantial ques-tion of law raised before this Court relates to issue No. 1, whether the plaintrff is owner in occupation on the basis of adverse possession and issue No. 2, whether the suit is barred under Order IX, Rule 9, C. P. C. as stated in paragraph 5 of the written statement? The trial Court dismissed the suit on the ground that the plain tiff had instituted suit No. 170 of 1995, Moolchnndv. Raghuvir and others, which was dismissed in default and no steps were tdken for getting the suit restored. The property over which the plaintiff claimed to have perfected his right on the basis of adverse possession, was also not accepted by the Courts below si?ce it was sold in execution case No. 241 of 1954. The plaintiff was residing in the capacity of licensee and licence having been revoked by the defendant/respon dents, the status of the plaintiff/appellant is no better than a trespasser. Counter-claim for possession of portion in occupation of plaintiff was allowed and decreed and the Iower appellate Court also refused to grant any relief whatsoever to the, plaintiff/appellant.;