Arun Bhansali, J. - (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 29.03.2012 passed by Additional District Judge No. 1, Udaipur, whereby, the judgment and decree dated 28.02.1998 passed by Additional Civil Judge (Senior Division) No. 2, Udaipur has been set aside and the suit filed by the appellant -plaintiff has been dismissed.
(2.) THE facts in brief may be noticed thus: the appellant -plaintiff filed a suit for injunction on 01.12.1990, inter alia, with the averments that plot No. 96, Moti Magri, Udaipur was allotted by defendant -Urban Improvement Trust, Udaipur ('UIT') to Mr. John Mathew on 31.12.1971; Mr. John Mathew executed an agreement to sale dated 16.09.1972 in plaintiff's favour for a sum of Rs. 8,500/ -; Mr. John Mathew died, whose father Mr. K.M. John was his only legal representative; Mr. K.M. John executed another agreement on 21.06.1973; the plot is in possession of the plaintiff since the agreement executed by Mr. John Mathew; Mr. John Mathew had constructed a boundary wall around the plot; UIT was requested several times to transfer the plot in plaintiff's name, which was not done, on the other hand plaintiff was informed that if he wanted to get the plot regularized then he should deposit money in terms of letter dated 17.12.1977; the amount was deposited by a Cheque dated 02.11.1979, drawn on the Canara Bank; repeated requests were made to UIT to regularize the plot; by letter dated 23.11.1979 plaintiff was asked to meet the Chairman, UIT; when the plaintiff met with the Chairman, he was assured that plot would be regularized in his name; on receiving the assurance, the plaintiff deposited the entire consideration and maintained his possession; in plaintiff's absence, the possession was sought to be illegally removed, on getting information, the defendant was prevented and was told that it had no right to dig the plot; defendant assured that the action would not be repeated in future; however, occasionally in his absence, workers of UIT visit the plot and attempt to trespass and, therefore, permanent injunction was sought seeking restrain against the defendant, its servants, agents and workers from interfering with the possession of the plaintiff and if during the pendency of the suit defendant illegally possess the plot then its possession be removed. A written statement was filed by the defendant -UIT disputing the plaint averments. It was, inter alia, claimed that allotment letter dated 31.12.1971 was issued to Mr. John Mathew, however, the allottee did not deposit the consideration in terms of the allotment letter with the defendant, therefore, neither any licence nor any lease deed was executed in Mr. John Mathew's favour and, therefore, qua the said plot Mr. John Mathew had no title, interest or right; in absence of any right Mr. John Mathew could not have transferred the plot to plaintiff and the so called transfer in his favour is void; fact of Mr. John Mathew's death was denied for want of knowledge and his father being his only legal representative was also denied; right of Mr. John Mathew's father was also denied and the document was claimed as void; the title was claimed in the UIT and the possession was also claimed; plaintiff's possession was denied and it was claimed that the boundary wall around the plot was constructed by UIT; it was pleaded that regularization in favour of plaintiff was not possible and the Trust was not bound; the plot was liable to be sold by auction; averments relating to construction of boundary wall etc. were made; further averments were made regarding the scheme under which the plot was allotted to Mr. John Mathew and the fact that the required amount was not paid and on account of violation of condition of allotment regarding non -transferability of the plot, the allotment stood cancelled.
(3.) A replication was filed by the plaintiff and it was claimed that possession was handed over to Mr. John Mathew on 06.01.1972 and a licence deed dated 07.01.1972 was executed.;