HAJI MOHAMMAD AND ANOTHER Vs. GANESH AND ANOTHER

JUDGEMENT

(1.) The counsel appearing for the plaintiff appellants, who have lost from the two courts below, has raised a number of pleas, which would appear from this judgment. However, the plea which requires some reflection is the plea based on Sec. 11 of the Civil Procedure Code.

(2.) Two cross-suits were filed before the Court of Munsif, Gohana District Ghazipur. One of the said suits being suit No. 2070 of 1957 was filed by defendant-respondent 2 in the present second appeal. He alleged that parties were resident of village Konthi Zafarpur in the district of Azamgarh. He had persuaded the quondam zamindar to settle shikmi plots Nos. 3 and 4 of abadi khasra 749 with him before the abolition of zamindari. He further stated that he had built a house on a portion of the said plots and made cattle troughs thereon. According to the allegation made in his plaint the aforesaid plots had vested in him under Sec. 9 of U. P. Z. A. and L. R. Act. His grievance was that the plaintiff appellant in the present second appeal had made certain cattle troughs in another portion of the said plots and that they had started digging foundation in the said plot and intended to make certain constructions thereon. He has also complained that the plaintiff-appellants of the present second appeal had made a drain in the land in dispute. Accordingly defendant-respondent No. 2 in this second appeal sought the relief for mandatory injunction and possession against the plaintiff-appellants. The said suit No. 2070 of 1957 was contested by the plaintiff-appellants of this second appeal on the ground that the disputed constructions did not lie in shikmi plots as alleged by the defendant respondent No. 2. According to them the land in dispute was joint sehan of the parties. They further asserted that the constructions made by them were old and the suit of the defendant respondent 2 was barred by time and also by the principle of estoppel.

(3.) The appellants of this second appeal filed another suit No. 2293 of 1957 before the same Munsif. They stated that the land in dispute was joint sehan land of the parties and the defendant-respondents have constructed a house in a portion of the said joint land which was shown by letters 'ABC and D and the land adjacent. thereto. It was also stated that in making the said constructions the defendant-respondents had blocked the drain of the plaintiff-appellants. They also prayed for relief of demolition and mandatory injunction. The suit was contested only by defendant-respondent 2. He repeated the averments which had been made by him in his plaint in O. S. No. 2070 of 1957. He also pleaded the bar of estoppel and limitation. According to him his house and ahata were old constructions and existed there prior to the abolition of zamindari. He denied that any drain belonging to the plaintiff-appellant existed at the place where his constructions stood.