Baheed Khan vs Abdul Rasheed

Sheel Nagu, J.—Heard on the question of admission. This second appeal u/s 100 of CPC has been filed against judgment and decree of reversal passed by the First Appellate Court reversing the judgment and decree of the trial Court by which the suit preferred by the plaintiff/appellant herein seeking declaration of ownership and permanent injunction in regard to the residential house was allowed.

The basic facts giving rise to the instant second appeal are that the plaintiff and defendant are real brothers. The plaintiff/appellant instituted a suit seeking declaration of ownership and permanent injunction in respect of the suit house. The issues were framed and after adducing the evidence the trial court decreed the suit in favour of the plaintiff to the extent of holding that plaintiff is in possession of the suit property, but after recording of evidence, it was found that the plaintiff has not been able to prove his title over the suit property, therefore merely issued a decree restraining the defendant from dispossessing the plaintiff from the suit property without following the due process of law.

The appellate Court has set aside the decree of the trial court by holding that the plaintiff at best can be termed as a temporary licensee for a certain period of time, which he was permitted by his brother-defendant to occupy the suit property. This finding of the appellate court is based on the statement of the defendant that the plaintiff being his brother had been permitted to reside in a part of the property which he cannot claim his own. The appellate court has further found that the trial court was wrong in passing the decree of permanent injunction despite finding the plaintiff to be a mere licensee having been permitted by the defendant to occupy the suit property for a limited period of time.

The nature of the pleadings and evidence which is required to successfully seek a decree of permanent injunction based upon settled possession could not be made available by the plaintiff. A mere licensee staying for a particular period for which he has been permitted to use the property can very well be termed as encroacher as held by the first appellate Court which finding is of factual nature and cannot be interfered with by this Court in this second appeal.

Since no substantial question of law appears to have arisen in respect of present second appeal as the findings of judgment and decree of the first appellate court do not suffer from any substantial error, therefore the same is upheld. Accordingly, this second appeal deserves to be and is therefore dismissed, sans cost.