NISHA GUPTA,J. - (1.) This second appeal under Section 100 CPC has been filed against the judgment and decree dated 5.10.95 passed by Additional District Judge, Karauli in Civil Appeal No. 46/92 reversing the judgment and decree dated 3.1.91 passed by A.M.J.M., Karauli in Civil Suit No. 4/89 and dismissing the suit for declaration and permanent injunction.
(2.) The short facts of the case are that the plaintiff appellant filed a suit for declaration and injunction on the ground that the disputed property is ancestral property of appellant which originally belongs to grand father of appellant Hazi Moledad Khan. There was a kachha house and permanent Kotha in the disputed property which was rented to Kohli community. Defendants are threatening to raise construction, hence the suit has been filed. It has also been prayed that if the defendants are found in possession a decree for possession should also be passed. The defendant respondents have pleaded that they are the owners of the property as their father has purchased the property in 1945 by a writing at the consideration of Rs. 60/- and in the alternative, they are in peaceful possession of the property in knowledge of the appellant and hence their possession became adverse. It has also been pleaded in rejoinder by the appellant that the disputed property was mortgaged to Gulsher Khan in 1945 and this also strengthened the contention of the appellant. The trial court has decreed the suit for declaration as well as injunction whereas the first appellate court has reversed the finding, hence this second appeal.
(3.) The appeal was admitted on 3.8.2005 on the following substantial questions of law: (1) Whether having pleaded and proved the ownership and possession by the plaintiff in the plaint and the disputed property having been mortgaged with Gulsher Khan as stated in the rejoinder would not sufficient to have pleaded the case of ownership by the plaintiff and a decree for ownership can only be denied to the plaintiff on not making specific pleadings of mortgage in the plaint ? (2) Whether the plaintiff is entitled for possession on the basis of ownership of the disputed property and is required to prove act of possession even the defendants have proved their possession over the disputed property ?;