ARUN BHANSALI, J. - (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 17.04.2009 passed by Additional District Judge (Fast Track) No.2, Bikaner, whereby, the judgment and decree dated 26.03.2007 passed by Civil Judge (Junior Division) No.2, Bikaner was upheld.
(2.) THE facts in brief may be noticed thus: the parties are both real brothers, respondent -plaintiff Om Prakash filed a suit for possession and permanent injunction on 31.05.1983 with the averments that the suit property, a house situated at Dhobi Talai Mohalla, Bikaner was purchased by plaintiff on 28.02.1962, which was registered on 13.03.1962 from Ebriahim; the property was self -acquired; as the defendant had no place to reside, the plaintiff permitted him to reside in a Varanda and a Kitchen for some time and rest of the property remained in plaintiff's possession, when the said property was sought by the defendant, it was agreed that as and when the plaintiff would tell him, he would vacate the premises; when the defendant started misusing the permission granted by the plaintiff, he was asked to vacate the said premises, which he refused and threatened, constructing a wall and demolishing the premises. It was prayed that the possession of the suit property be handed over to the plaintiff and the defendant be restrained from constructing a wall and to demolish any part of it. A written statement was filed by the appellant -defendant, it was claimed that the property was not that of plaintiff alone; the family of the parties was a Hindu Undivided Family and plaintiff being elder was Karta Khandan. The family had nucleus received from father in the form of Jewelry, the suit property was purchased from joint family funds in the name of Karta Khandan and both the brothers were joint owners and were in possession; the property was not self acquired. The defendant was in possession as owner of the suit property, objections were raised regarding jurisdiction, limitation and deficient court fees.
(3.) THE trial court framed ten issues. On behalf of the plaintiff, two witnesses were examined and the sale -deed was exhibited. On behalf of the defendant, three witnesses were examined and 24 documents were exhibited. After hearing the parties, the trial court came to the conclusion that when the house was purchased, defendant was 10 years old, the plaintiff was serving with the Railways and has purchased the suit property after obtaining loan and the sale - deed was executed in his favour; the suit property was in possession of the defendant as licensee; the plaintiff was entitled to possession and permanent injunction. The defendant has failed to prove that the property was in his possession either as a co -owner or as a owner; the suit was within the jurisdiction of the trial court; the suit was properly valued; the suit was within limitation and, consequently, decreed the suit filed by the plaintiff and permanent injunction as prayed was also granted. ;