BALRAM AND ANOTHER Vs. RAM NIHORE AND OTHERS

JUDGEMENT

(1.) These two connected second appeals have come up before us on a reference made by Mr. Justice Brijlal Gupta. The learned single Judge felt that the cases needed to be heard by a Division Bench as it was necessary to resolve the conflict between two single Judge decisions of this Court in Alla Bux Vs. Budha, 1939 A.L.J.R. 355 and Batram Das Vs. Harakh Chand, A.I.R. 1949 Allahabad 754 = 1949 A.L.J. 243 The facts of the two cases be-fore us are different. Before considering the questions argued in connection with them we shall first state those facts briefly.

(2.) Second appeal No. 1292 of 1954 arises out of a suit for injunction restraining the defendants from obstructing the plaintiff in demolishing his southern wall and restraining them from obstructing the plaintiff from building the said wall pakka. The plaintiff claimed that the wall belonged to his house and belonged to him. He said that the wall was Kachcha and he wanted to make it Pakka. He had obtained permission from the Municipal Board for the purpose but the defendants were restraining him from pulling down the wall. He therefore prayed for the aforesaid injunction. The defendants contested the suit and denied that the wall in question belonged to the plaintiff. They alleged that the wall was really a wall of their house which the plaintiff was not entitled to pull down or reconstruct.

(3.) The trial court decided the question of title to the wall in favour of the plaintiff and held that the obstructions raised by the defendants was unjustified. It decreed the suit and granted the injunction prayed for. Against that decree the defendants preferred an appeal. They had engaged a counsel for arguing the appeal. When the appeal was taken up for hearing the appellants along with their counsel were present. The counsel, however, moved for an adjournment on the ground that he was not prepared with the case. This request for adjournment was rejected. The counsel then showed his inability to argue the appeal but he continued to be present in Court along with the defendants-appellants. The learned Civil Judge then heard the respondent's counsel and finding that no case had been made out for disturbing the decree of the trial court dismissed the appeal on merits.