JAGGU Vs. PATANDIN AND OTHER

JUDGEMENT

(1.) -This is a defendants second appeal in a suit for injunction.

(2.) The trial court decreed the suit by issuing a permanent injunction restraining the defendants from causing any interference in the plaintiffs possession over the trees in suit. The lower appellate court modified the decree by limiting the injunction to the trees standing on the old plot No. 491/3, as shown in the Commissioners map which is paper No. 56-C on the record.

(3.) The main question raised by Mr. Jagdish Misra, the learned counsel for the appellant, was that the suit was barred by Sec. 49 of the U. P. Consolidation of Holdings Act. This question arises this way. Before consolidation of holdings in village Gaighat, Tappa Dubkhera, Per-gana Nagar Purab, Tahsil and district Basti, plot No. 491/1 had three sub-divisions, i. e., 491/1, 491/2 and 491/3. According to C. H. Form No. 2-A, Ext. 10, plots Nos. 491/1 and 491/2 were cultivated and the defendants were their tenure-holders, while the plaintiff was the tenure-holder of plot No. 491/3, which is a grove. It is undisputed that plot No. 491/3 became Chak No. 287 while plots Nos. 491/1 and 491/2 became Chak No. 272, and according to the final record of rights, prepared by the consolidation authorities, the defendants were the tenure-holders of Chak No. 272 while the plaintiff was the tenure-holder of Chak No. 287. It, however, appears that in the map, prepared by the consolidation authorities, the position of Chak No. 287, which was the new number given to plot No. 491/3, was wrongly shown, although within old plot No. 491/1, with the result that most of the trees of the grove fell outside Chak No. 287, as demarcated by the consolidation authorities, and that this was so has been found as a fact by both the courts below on the basis of the survey Commissioner's report and the map prepared by him, the map, being paper number 56-C on the record. It was the plaintiffs case that taking advantage of this mistake, the defendants interfered in his possession over the trees. The plaintiff had, before filing the suit, applied to the Collector concerned for correction of the map after the close of the consolidation operations. By an order dated 29th July, 1964 Ext. A-l, the Additional Collector dismissed the plaintiffs application on the ground that the map had become final and conclusive under S. 28 of the U. P. Consolidation of Holdings Act and that he had no jurisdiction to correct it. The plaintiff then filed the suit giving rise to the present second appeal.