Mohammad Rafiq, J. - (1.) THIS is plaintiff's second appeal directed against judgment and decree dated 08.02.1994 of the learned Additional District & Sessions Judge, Hindauncity, in Civil Regular Appeal No. 13/1992, whereby judgment and decree dated 07.02.1986 of the learned Munsiff & Judicial Magistrate, Hindauncity, in Civil Suit No. 26/1974 was set -aside, who had decreed the suit of the plaintiffs for possession and permanent injunction against the defendants in respect of a piece of land described as 'chabootra' measuring 57' x 42' situated at Hindauncity, boundaries of which were described in the plaint. It was averred in the plaint that the disputed land was purchased by the plaintiffs from Shyam Sunder vide sale -deed dated 13.11.1962. They were put in possession of the same and since then they have been occupying the same. The parties are closely related to each other. The defendants, who are father and son, taking advantage of the close relationship with the plaintiffs, trespassed over the said land of 'chabootra'. Even when the plaintiffs forbade them to do so, the defendants on 27.05.1974 have erected over the land of 'chabootra', structure of 'pattore' and 'dhalia' measuring 7' x 16' on the northern side adjacent to their house, and have installed a water tank on the southern side. Despite persistent request by the plaintiffs, the defendants were bent to further encroach the land by putting construction. They have denied entry of the plaintiffs to the aforesaid 'chabootra'. They have stored stone slabs and other construction material on the disputed land. It was therefore prayed that possession of aforesaid 'chabootra' be restored to the plaintiffs by evicting the defendants and they be restrained by issue of perpetual injunction from interfering with the possession of the plaintiffs and from encroaching upon the disputed land. The suit was contested by the defendants who filed written statement asserting that though the 'chabootra' in dispute was purchased by defendant No. 1 from Shyam Sunder by registered sale -deed dated 01.11.1962 against sale consideration of Rs. 850/ - but owing to certain special reasons, the defendants got the sale -deed executed in favour of the plaintiffs, who were their very close relatives. It was purchased by the defendant No. 1 at the insistence of his wife by investing his lifetime savings of Rs. 850/ -. However, the disputed land was in possession of the defendants since the date of purchase and has throughout remained in their possession. The plaintiffs were never in possession of the disputed 'chabootra'. The disputed plot was purchased by the defendants because it was adjacent to their house. The construction material stored there at belonged to the defendants. It was pleaded that the alleged construction (pattore) was situated on the dispute land since 1964 i.e. even prior to date of purchase, which was always used for keeping the cattle by the defendants. The defendants cannot be said to be encroacher on their own land. The water connection was taken by the defendants from the water works department in 1974 and water tap is existing there.
(2.) IN the additional pleas, it was pleaded that financial condition of the defendants was not very good. The defendant No. 1 had no residential house, therefore, they constructed a small house adjacent to the disputed 'chabootra' by borrowing money. His debtors were threatening to get his house attached for the purpose of recovery of borrowed money. In the meantime, the disputed 'chabootra', which was adjacent to his house, became available for sale and the defendants wanted to purchase the same but they did not want that it should be known to the debtors. Owing to these circumstances, the defendants instead of purchasing the 'chabootra' in their name, got the sale -deed of the same registered in the name of plaintiffs. The plaintiff No. 1 was their close relatives being real brother of wife of defendant No. 1. The house of the defendants was mortgaged with the debtors. Entire expenses of the sale -deed were incurred by the defendants. The plaintiffs are therefore only 'benamidar' of the defendant and they are not in possession of the disputed 'chabootra' or any part thereof. Learned trial court on the basis of pleadings of the parties, framed following issues, 1. Whether the plaintiffs purchased and got possession of the disputed 'chabootra' on 13.11.1962 and have been in possession since then? 2. Whether the defendants installed pattore on or about 27.05.1974, and have encroached upon the disputed 'chabootra' in or about February, 1975 by erecting a wall towards its east -west side and started storing fodder and installed a tap and also started timber depot? 3. Whether the defendant No. 1 is benami purchaser of the disputed 'chabootra' and is in possession in the capacity of owner? 4.WHETHER the plaintiffs have not paid sufficient court fee and the court does not have pecuniary jurisdiction to hear the plaint? 5.RELIEF ?
(3.) Issue No. 4 pertaining to the court fee and pecuniary jurisdiction of the court was decided as preliminary issue. The learned trial court, vide order dated 24.01.1986, decided that issue in favour of the plaintiff, however, requiring them to pay certain court fees, which they did. Issue No. 3 was however decided against the defendants holding that they failed to prove that the disputed 'chabootra' was purchased by way of benami transaction and the defendants were its actual buyer. Issue No. 1 regarding continuous possession of the defendants and issue No. 2 regarding trespass said to have been made by the defendants was also decided against the defendants. Consequently, the suit was decreed.;