USMAN Vs. MUNNEER HAZZAM AND OTHERS

JUDGEMENT

(1.) THIS is plaintiff's second appeal in a suit for injunction and in the alternative for possession in respect of a plot of land denoted by letters A.B.C.D. on the plaint map. The plaintiff's case was that he was a co-sharer in the zamindari rights in respect of the land used to have a Kolhar thereon, that the building of the said Kohar fell down in the year 1955-56 and the defendant-interfered with the plaintiff's possession over the land and prevented him from reconstructing buildings thereon. An earlier suit being suit no. 77 of 1957 filed by Mehdi Hasan plaintiff's uncle and co-sharers was decreed by the trial Court but was dis­missed on appeal, according to the plaintiff, on a preliminary ground. The suit giving rise to the present second appeal was filed soon thereafter

(2.) THE defendants traversed the plaintiff's case. The following were the issues on which the parties went to trial;-

(3.) ON plaintiff's appeal, the lower appellate Court observed that the present suit was a vain attempt to claim the land which could not succeed in the earlier suit, and although "technically the plea of res-judicata do not apply "the claim is substantially the same which the plaintiff's uncle could not maintain in the earlier suit. This was followed up by the lower appellate Court by the following observations." The plaintiff as in the suit did not detail the Sikmi plots of which he was co-sharer, proprietor before the aboli­tion of zamindari. The partition papers, namely, partition Khasra and the map on the record can be of no help because Sikmi numbers of the land in question have not been plotted. The plaintiff and his co-sharers are shown to be the owners of certain Sikmi plots but the same have not been located and the identification of the land in suit with its Sikmi numbers have not been established. The case cannot, therefore, be decided upon conjectures and supposition that the land in suit was indentical with the Sikmi numbers denoted in the Patti Akher Ali belonged to the plaintiff and his co-sharers. "I have not been able to make any sense out of the said observations of the lower appellate Court. A case has to be decided by the Court on the pleadings of the parties and on the evidence led by them. Here the decision appears to be based more on absence of evidence which the Court thought was the only evidence on which a case of the present kind could be established.