JUDGMENT
B.K. Rathi, J.
1. The appellant Santoo (since deceased) filed the suit for permanent injunction to restrain the respondents from interfering in his possession over the land in dispute as shown in the said plan given at the foot of the plaint. The relief for mandatory injunction has also been sought directing the respondents to remove cattle troughs etc. The respondents contested the suit and they claimed the ownership and possession of the disputed land. The trial Court held that the plaintiff failed to prove his possession over the disputed land. He has also failed to prove his title over the same. That the cattle troughs put by the respondents could not be removed. The trial Court accordingly dismissed the suit with costs. Aggrieved by if the appellant preferred first appeal No. 30 of 1981. The respondents also preferred appeal No. 605 of 1981. Both the appeals were heard and dismissed on 18-8-1982. Therefore, the present second appeal has been filed.
2. I have heard Shri J. J. Muneer, learned counsel for the appellant. None appeared for the respondents at the time of the hearing of the appeal. However, I have gone through the entire record.
3. According to the appellant, the disputed property originally belonged to Nibar who transferred it by the sale deed to Sahabdin. The appellant purchased the property from Sahabdin by sale deed dated 30-1-1973 and he got the possession of the same. The first appellate Court after considering the evidence in detail has held that Nibar was the owner and in possession of the property in dispute. He further held that Nibar transferred the property to Sahabdin and he became owner of the property in dispute by sale deed. However, the appeal was dismissed by the appellate Court for the reason that the sale deed alleged to have been executed by Sahabdin on 30-1-1973 in favour of the plaintiff-appellant has not been proved. Sahabdin was examined by the plaintiff to prove both the sale deeds executed by Nibar in his favour and sale deed executed by him in favour of the appellant. The appellate Court has held that the sale deeds have not been proved in accordance with law as Sahabdin was totally illiterate. He has only identified the thumb marks of the sale deed, which, is not possible, as he is not a finger print expert. That the sale deed should have been read over to him. That therefore, the execution of the sales deed has not been proved in accordance with law.
4. The second appeal was admitted on this question alone by the following order :–
“The substantial question of law involved in the second appeal is that the lower Appellate Court seems to have acted illegally in taking the view that the sale deed executed by Sahabdin who has been found to be the owner of the property in dispute in favour of the appellant had not been proved notwithstanding the statement of Sahabdin himself proving the said sale deed.”
5. After considering the argument of the learned counsel, I am of the view that there is no illegality in the finding of the first Appellate Court that Sahabdin has not proved the sale deed in accordance with law. He has only stated that the sale deed bear his thumb mark, which statement cannot be believed. If a document is to be proved by illiterate person, it should be read over to him. Therefore, I find that there is no illegality in the order of the first Appellate Court that the sale deed has not been proved in accordance with law.
6. However, it has been argued by Shri J. K. Muneer, learned counsel for the appellant that even if the sale deed has not been proved the suit should have been decreed by the appellate Court on the basis of the finding of possession in favour of the appellant. It has been argued that the lower appellate Court has held that Nibar was owner and he was in possession over the property in dispute. Thereafter, Sahabdin was the owner in possession. Sahabdin has entered into the witness box and stated that he has transferred the ownership and possession to the appellant. Therefore, it has been argued that the appellant is in legal possession over the property in dispute. As against this the respondents have failed to prove their title over the disputed land. They have also failed to prove their possession. The appellant is therefore, entitled to the decree of permanent injunction on the basis of possessory title alone. That this aspect of the matter has been totally ignored by the first Appellate Court. I agree with the argument of the learned counsel for the appellant that the appellant is entitled to the decree for permanent injunction on the basis of the possessory title against the respondents who have no title over the land nor are in possession of the same.
7. Accordingly, the appeal is allowed and the respondents are restrained by way of permanent injunction from interfering in the possession of the appellant over the land in dispute and to take possession of the same without due process of law.
8. In the circumstances, the parties shall
bear their own costs throughout.