SUBHAGA Vs. SHOBHA

JUDGEMENT

(1.) Leave granted.

(2.) This Appeal by Special Leave is by the legal representatives of the original plaintiff in O.S. No.1326 of 1957 on the file of the Munsif, Mohammadabad Gobarn at Azamgarh. The suit was one for a mandatory injunction directing the defendants in the suit to demolish further constructions put up by them and to fill up a well dug by them in the property claimed to belong to the plaintiff. The plaintiff claimed title and possession over the suit property which was described in the plaint and got demarcated in a sketch. The claim of the plaintiff was that the construction had been put up in plot No. 1301/1 Ba in Village Sarhan Kolla Pargana Mahal, District Azamgarh. The defendants resisted the suit essentially on a plea that the constructions put up by them did not lie in plot No. 1301. They, of course, denied the title and possession claimed by the plaintiff over the portions in which the constructions and the well stood.

(3.) The suit had a chequered career. There were repeated remands of the suit. What is seen is that ultimately the question boiled down to that of identification of the suit property with reference to the disputed portion. Ultimately, in the present round, the trial court decreed the suit holding that the plaintiff was the owner of the suit land which had been identified on the spot and was hence entitled to the reliefs claimed. An appeal filed by the defendants was dismissed holding that the disputed constructions lay in the suit property described in the plaint, that the plaintiff had title to it and that the trial court was hence right in decreeing the suit. Thus, the appeal filed by the defendants was dismissed. The defendants filed a Second Appeal before the High Court of Allahabad. The High Court upheld the finding rendered by the courts below that the plaintiff was the exclusive owner of plot No. 1301/1 Ba. The High Court found that there was no illegality in the approach made by the courts below in arriving at that finding and the finding was based on the evidence on record. But in spite of this finding, the High Court reversed the judgment and decree of the first appellate court and dismissed the suit on a finding that there was no proper identification of the suit property by the plaintiff either in the plaint or at the spot and since the boundaries cannot be ascertained without surveying the adjoining plots, no decree could be granted to the plaintiff as was done by the courts below. The Second Appeal was thus allowed and the suit was dismissed. This is challenged in this appeal by the legal representatives of the plaintiff.