MUSADDI & OTHERS Vs. MANGAL AND OTHERS

JUDGEMENT

(1.) THIS appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 06-08-1985, passed by the then Civil Judge, Roorkee, in Civil Appeal No. 73 of 1979, whereby the said first appellate court has set aside the judgment and decree dated 06-10-1979, passed by the trial court in Suit No. 131 of 1977, and decreed the suit for pos­session over the land in dispute.

(2.) HEARD learned counsel for the par­ties and perused of lower court record.

(3.) DEFENDANT No. 1 to 4 (present ap­pellants) contested the suit and filed their written statement. They denied the claim of the plaintiffs that the land is owned by them. It is pleaded that the land of Khasra No. 165 was left in consolida­tion proceedings for abadi. It is also pleaded that the land of old plots No. 341/2 (area 1 biswa); 342 (area 13 biswa); 333 (area 6 biswa); 344 (area 6 biswa); 345 (area 6 biswa); 346 (area 2 biswa); and 346/2 (area 10 biswa) form part of Khasra No. 165. In all said Khasra has a total area of 2 bigha 3 biswa. It is alleged by the defendants No. 1 to 4 that 8 biswa land of old plot No. 343 was allotted to one Asha Ram (grand father of defendant No. 3 Buddhu), who bequeathed the land to the defendants. It is further pleaded that since then defendants are in possession of the land in dispute which is part of land allotted to Asha Ram. An objection has been raised in the written statement that suit is barred by Section 49 of U.P. Consolidation of Holdings Act, 1953, as no objections were raised by the plain­tiffs before the consolidation authorities. Defendant No. 5 Gaon Sabha (which was impleaded during the pendency of suit) has filed separate written statement and alleged that the possession of the plaintiffs as well as that of the defend­ants No. 1 to 4 over plot No. 165 is il­legal. It is pleaded that defendant No. 1, when he was village Pradhan has occupied the disputed land, illegally.