(1.) HEARD learned counsel for the appellant at the admission stage.
(2.) THIS is plaintiff's Second appeal arising out of O.S. no.746 of 1990 which was decreed by Additional Civil Judge/A.C.J.M. XII Allahabad on 31.8.1992. Against the said decree legal representatives of original defendant respondent Chotey Lal filed civil appeal no.38 of 1994 (legal representative had been substituted in the suit after the death of original defendant).
(3.) PLAINTIFF and original defendant Chhote Lal were real brothers. According to the own case of the plaintiff his father had left behind two houses which were partitioned among themselves by plaintiff and original defendant and house shown by letter Aa in the plaint map came in the share of plaintiff and house shown by the letter Ba came in the share of the defendant. This is undisputed position. However, the dispute related to land lying towards west of plaintiff's house and south of defendant's house. Plaintiff stated that it was sahan and it was kept joint and not partitioned, however, the original defendant pleaded that the sahan was also partitioned except a rasta of 9' width which passed through that, and in the portion of the sahan which had fallen in the share of the plaintiff, plaintiff had already made construction along with few steps as plinth of the house of higher than the ground which was part of the house shown by letter Ba in the plaint map. The suit was filed for permanent prohibitory injunction seeking to restrain the defendant from making construction in the land which according to the plaintiff was common sahan.