- (1.) This second appeal has arisen out of a suit for permanent injunction. The case as made out in the plaint is inter alia as follows : The suit property is a "Pirothan" property of Pir Gorachand Saheb and the predecessor of the plaintiffs Ahid was the shebait of the suit property. The lands in the suit khatian were divided amongst the shebaits and all the shebaits were possessing those lands by demarcating boundaries. Ahid was possessing the suit property by demarcating boundaries within the knowledge of other shebaits. The plaintiffs have also been possessing the suit property since the time of deceased Ahid. The suit plot is homestead land There are three huts upon .03 decimals of land in the suit plot and Ahid used to live there with his family. The said .03 decimals of land have been recorded in the name of the plaintiffs in present L. R. Khatian. The plaintiffs have been possessing the remaining .12 decimals of land in the suit plot since the time of their predecessor. The suit plot was never possessed by any other persons except Ahid and the present plaintiffs. Besides that the plaintiffs have two dwelling huts, one cow-shed and one kitchen in the suit plot. There are some coconut and baha trees on the suit land and the plaintiffs are enjoying the usufruct of those trees since the time of their predecessor. The defendants are residing in R. S. Plot No. 59, Khatian No. 309 and they have no right and title in the suit plot No. 59. The defendants are trying to trespass into the suit land and trying to cut trees from the suit plot and are also trying to change the nature and character of the suit property. The cause of action arose on 1-3-1985 when the plaintiffs came to know about doing of illegal acts of the defendants. Accordingly the plaintiffs filed the instant suit for permanent injunction.
(2.) The defendant No. 2 contested the suit by filing written statement and denied material allegations made out in the plaint contending inter alia that the suit is not maintainable and the suit is barred by limitation under Section 34 of the Specific Relief Act. The defence in brief is that the "Pirothan" property are not personal properties of the Shebaits. The pirothan property was recorded in Khatian No.1 in C.S.R.O. R. and R.S.R.O.R. The plaintiffs can't file this suit on personal capacity. In R.S.R.O.R. 12 decimals of land out of 15 decimals of land in the suit Plot No.59, Khatian No. 309 were recorded and the remaining .03 decimal of land were recorded in separate Khatian No. 271. The suit property is not properly described in the plaint as well as in the petition for temporary inunction. There was only 1 hut to the southern side of the suit plot upon .03 decimals of land. Ahid never possessed 12 decimals of land in the suit plot excepting that .03 decimals of land. The defendants hae been possessing 12 decimals of land in the suit plot since the time of their predecessor. Hebaludding possessed the entire 15 decimals of land in the suit plot and his name was recorded in C.S.R.O. R. Hebaluddin gave .03 decimals of land to Ahid to live in there when Ahid came from another place and requested Hebaluddin to give some land to live in there. There was demarcating fencing between .03 decimals and . 12 decimals of land in the suit plot but the plaintiffs removed those fencing made of kacha plants. The defendants are enjoying fruits of trees in the suit plot. The defendants are possessing lands in plot No. 60 adjacent to the suit plot and the defendants are possessing lands in plot No. 60 and 12 decimals of land in the suit plot by walling those lands or complex area without any demarcating line and the defendants are cultivating turmeric in those lands. The demarcated .03 decimals of land in the suit plot has been recorded in R.S.R.O.R. in the name of Ahid in Khatian No. 271 and the remaining .12 decimals of land were recorded in khanda Khatian No. 309 but in column No. 23 due to mistake the names of all shebaits were mentioned as shebaits in lieu of Hebaluddin. Hebaluddin gave 12 decimal of land in the suit plot along with other properties to his son's wife Arjumanara by executing a deed of gift and Arjumanara gave 54 decimals of land including 12 decimals of land in the suit plot to this defendant by executing a deed of gift on 3-10-1985 and they are living there. A case u/S. 144, Cr.P.C. was filed by the plaintiffs against the defendants but after the enquiry the case was dismissed. The case is filed on false allegations and it is liable to be dismissed with costs.
(3.) On the above pleadings made by the parties the learned trial Judge framed the following issues : 1) Have the plaintiffs any cause of action for this suit ? 2) Is the suit maintainable in its present form ? 3) Are the plaintiffs entitled to the injunction as prayed for ? 4) Are the plaintiffs entitled to get decrees as prayed for ? 5) To what other decree if any, are the plaintiffs entitled.;