RAM PHAL Vs. SHEO MANGAL AND OTHERS

JUDGEMENT

(1.) This is a plaintiffs second appeal arising out of a suit filed for a mandatory injunction directing the respondents to demolish certain constructions alleged to have been made over plot No. 494/2 as also for a prohibitory injunction restraining the respondents from interfering with the possession of the plaintiff-appellant and for recovery of Rs. 100.00 as damages.

(2.) The case of the plaintiff-appellant was that he is Bhumidhar of plot No. 494/2 measuring 12 biswas and that the Gaon Sabha, Sarai Bir Singh executed a patta on 1st July, 1955 in his favour and that he has been in possession since then and has also obtained Bhumidhari sanad after depositing 10 times of rent. It was further alleged that the defendant-respondents wanted to interfere with the possession of the plaintiff-appellant and hence the necessity of filing the suit. The suit was contested by the defendants-respondents on the ground that the patta in question was fictitious and invalid in law. The plaintiff-appellant is neither the Bhumidhar nor in possession. It was further alleged that the plot in dispute contains trees planted by the ancestors of the defendants-respondents who have been in possession over the plot in dispute. It was further alleged that the suit was barred by time.

(3.) The trial court by its judgment dated 12th Dec., 1967 decreed the suit holding that the plaintiff-appellant is the Bhumidhar of plot No. 494/2. It was further held by the trial court that the constructions in suit are new and are liable to be removed. Against the judgment dated 12-12-1967 an appeal was filed before the lower appellate court. The lower appellate court by judgment dated 5th April, 1968 allowed the appeal and set aside the decree passed by the trial court resulting in the dismissal of the suit. The lower appellate court recorded a categorical finding of fact that the plaintiff-appellant was not the Bhumidhar of the land in dispute nor he has been in possession over the said land.