PARAMJEET SINGH, J. - (1.) THIS second appeal arises from a suit filed by plaintiff -Meetha Ram for permanent injunction restraining defendants -Darya Singh which has been dismissed by the Court of first instance vide judgment and decree dated 27.01.1987 and appeal preferred by the plaintiff was accepted and suit of the plaintiff was decreed, vide judgment and decree
(2.) THE detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this regular second appeal are that plaintiff filed suit for permanent injunction and in alternative for possession on the allegations that he is owner in possession of the suit property. It was pleaded that one Amrit son of Dharma was owner in possession of the suit property, who mortgaged it in favour of plaintiff vide mortgage deed dated 22.12.1945, but since the mortgage was not redeemed within the prescribed period for the purpose, he has become its owner. It was further pleaded that the suit property, which was a kacha house, had later on fallen down and now it is lying in the shape of a plot. It was pleaded that defendants be restrained from interfering in the peaceful possession of plaintiff over the suit property and in alternative if defendants dispossess plaintiff forcibly during the pendency of suit, a decree for possession of the suit property be passed in favour of plaintiff and against the defendants. Defendants resisted the suit and pleaded that plaintiff is not the owner in possession of the suit property, rather defendant no.4 had become owner in possession of the suit property by virtue of registered sale deed dated 29.12.1980. It was further pleaded that Amrit son of Dharma, the alleged mortgagor of the suit property was not owner in possession of the suit property. It was further pleaded that if there was any mortgage deed, as alleged by plaintiff, the same is illegal, null and void and not binding on the rights of defendants. In additional pleas, it was pleaded that plaintiff was estopped from filing the present suit by his own act and conduct as he had not raised any objection at the time of raising four -wall of the suit property by defendants.
(3.) ON the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether plaintiff is owner in possession of the property in dispute as mentioned in para no.1 and 2 of the plaint?OPP 2. Whether suit property has not been properly described in the plaint and in the site plan, if so, its effect?OPD 3. Whether suit of the plaintiff is not maintainable in the present form?OPD 4. Whether mortgage deed relied upon by the plaintiff has no value in the eyes of law. If so, its effect as alleged in additional plea no.2 of the written statement?OPD 5. Whether the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction? As alleged?OPD 6. Whether the suit of the plaintiff is false and frivolous entitling the defendants to special costs under Section 35 -A C.P.C.?OPD 7. Whether the plaintiff is estopped from filing the suit by his own act and conduct?OPD 8. Whether Smt.Anaro has become owner in possession by virtue of the sale deed dated 29.12.1980?OPD 9. Relief." ;