SOMAR AND ANOTHER Vs. PABBAR

JUDGEMENT

(1.) THIS appeal by defendants -appellants is directed against judgment and decree dated 28 -9 -1973 by Sri M.P. Singh, learned III Additional Civil Judge, Varanasi by which appeal No. 92 of 1973 was allowed with costs: judgment and decree of learned trial Court dated 20 -2 -1973 in suit No. 628 of 1970 were set aside and plaintiff's suit was decreed for recovery of Rs. 55/ - by way of compensation from defendants -appellants. They were also restrained perpetually from cutting and appropriating the bamboos from the bamboo clumps in suit which lie in plot No. 208. Dispute relates to bamboo clumps situate in plot No. 208 measuring 20 decimals situated in village Daniyalpur, Pargana Sheopur, District Varanasi.

(2.) THIS land was alleged as Sirdari of plaintiff. It was alleged that bamboo clumps standing in the land in dispute belonged to plaintiff. These bamboo clumps stood in an area of about 4 decimals of plot No. 208 and were possessed by plaintiffs. The remaining area was under his cultivation; defendants had no concern with the plot in dispute nor they had any connection with the bamboo clumps. Defendant No. 1 was a 'Gunda' and unruly and in July 1970 forcibly cut away 20 bamboos from the said clumps without any right or interest. Plaintiff's son Sheo Nath made a complaint before S.D.O. but no proceedings were initiated on the complaint.

(3.) DEFENCE was that the bamboo clumps did not belong to the plaintiff but were planted by the grand -father of defendants. These bamboo clumps were standing near the house of defendants. Defendants and their ancestors continued to possess them as owners. There was also a pit surrounded by these clumps from which they were taking earth for repairs of their house etc. There existed a manure pit, a Sahjan tree and pegs of defendants on the disputed land. They also prepared cow -dung cakes and stored wood etc. and tethered their cattle there.