BHARAT SINGH Vs. SUNDER AND ORS.

JUDGEMENT

(1.) HEARD Sri P.N. Tripathi, learned Counsel for the Appellant.

(2.) THIS second appeal has been filed against the judgment and decree dated 4.9.2010 passed by the Additional District Judge, Court No. 7, Badaun in Civil Appeal No. 22 of 2009, whereby the suit of the Plaintiff -Appellant has been dismissed by the first appellate court and the judgment and decree dated 21.3.2009 passed by the trial court has been set aside.

(3.) HAVING considered the submission of learned Counsel for the Appellant and perused the record, it appears that the Plaintiff -Appellant is co -tenure holder alongwith Defendant -Respondent. Admittedly, no partition has taken place between the parties and Plaintiff -Appellant claims to be owner of an area 0.051 hectare in the plot in question. The first appellate court while considering the appeal of the Defendant -Respondent has recorded that the land in question could not be identified within the Plot No. 257 and therefore, the Plaintiff could not claim an injunction against his co -tenure holder. The aforesaid finding of the first appellate court appears to be on the basis of evidence available on record and more particularly when the trial court had decreed the suit of the Plaintiff -Appellant not on the basis that the Plaintiff had proved his case but only on the weakness of the Defendant's case.