1. This appeal under section 100 of the Code of Civil Procedure (“the Code” for short) is filed by the original plaintiffs with original defendants No.2,5 and 6 against the judgment and decree dated 31.3.1997 passed by the learned Extra Assistant Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Appeal No. 67 of 1988 whereby the learned appellate Judge allowed the appeal and set aside the judgment and decree passed by the learned Trial Judge in Regular Civil Suit No. 525 of 1979 dated 30th July, 1988. The suit was filed by the appellants No.1 and 2 for recovery of possession of the suit property from the respondent No.1 (Original defendant No.1). For the sake of convenience, the parties shall be referred to as per their original status before the learned trial Judge.

2. The case of the plaintiffs in their suit was that the defendant No.1 was employed as watchman to look after the trust properties including the hospital and nursing home run by plaintiff no.1, that to facilitate the defendant No.1 to properly perform his duty as watchman, he was given one room to reside therein as licensee till he was in service, that on the request of the defendant No.1 to provide more space because of increase in the family members, defendant No.1 was permitted to use iron sheets and some wooden material for the purpose of making change in the suit premises to reside with his family members during the service period but unfortunately, he started illegal activities by attempting to occupy more space by constructing bore well and since such activities of defendant no.1 were against the interest of the trust, defendant No.1 was relieved from service with effect from July, 1979, that for the purpose of getting suit premises vacated, notice dated 25.6.1979 was served to defendant No.1. It is further case of plaintiffs that defendant No.1 therefore filed one suit being Regular Civil Suit No. 306 of 1979 on 25.6.2979 praying for declaration that the suit premises was of his ownership and for permanent injunction restraining the plaintiffs from interfering in the possession of the suit premises. In the said suit, the Court had given interim protection to the defendant No.1 only for the room wherein defendant No.1 was residing but refused to grant any interim protection for extra space over, that in the said suit, the plaintiffs appeared and contended by filing their written statement that the defendant No.1 was holding the room only as an employee of the plaintiffs and he was entitled to retain the possession of the room till he remained in service, that his services were put to an end and, therefore, he was not entitled to continue with possession of the room as the defendant No.1 was given the room on leave and license basis because of his employment with the plaintiffs. The plaintiffs have thus averred in the plaint that since the defendant No.1 was unauthorizedly holding the suit premises and since the defendant No.1 had not vacated the suit premises even after service of the notice, the suit was required tobe filed seeking possession from defendant No.1 and for mesne profit for interim period.

3. The suit was resisted by defendant No.1 by filing the written statement wherein amongst other legal contentions, defendant No.1 came out with the plea that the defendant No.1 was not given the suit premises by the plaintiffs as an employee but he was in fact owner and in possession of the suit premises which was 800 square yards as described in his earlier suit being Regular Civil Suit No. 306 of 1979 and the said 800 square yards comprised of residential house. The superstructure of the residential house is of the defendant No.1 for which he was paying taxes to the panchayat. Defendant No.1 had also stated in his written statement that his services were illegally terminated by the plaintiffs for which he had already filed application before the labour court. In this very written statement, defendant No.1 had taken alternative plea that he ha