KALPU Vs. SANAURAR KHAN

JUDGEMENT

(1.) This is a defendant's Second Appeal from a decree for Rs. 100/- as damages against the defendants Nos. 1 to 5, a mandatory injunction against them to fill up two ditches shown on the map (paper No. 45-C), which forms part of the decree of the trial court, and for a prohibitory injuriestion perpetually restraining the said defendants from interfering in the possession and enjoyment of the plaintiffs and the defendants Nos. 6 and 7 over plots Nos. 136 and 205.

(2.) The dispute between the parties centres round four mango trees shown by the figures 1 to 3 and 15 and a bamboo clump, which are situate on plot No. 136 to the west of plots Nos. 135 and 205. There is no dispute that the plaintiffs and the defendants Nos. 6 and 7 are the bhumidhars in possession of plots Nos. 135 and 205. There is also no dispute that plot No. 136 does not belong to the plaintiffs, but was recorded as Banjar and the contesting defendants' house is situate on that plot. The plaintiffs claimed that the said four mango trees and the bamboo clump belonged to them as they had nurtured them, and further claimed that the defendants' act of digging the ditches complained of had caused damage to the trees, in respect of which the amount of Rs. 100/- was claimed by way of damages. The contesting defendants claimed that they were not responsible for digging the ditches and named one Lalman as responsible for the same. The plaintiffs' title to the trees and their possession were also denied.

(3.) As many as eight issues were framed by the trial court, Issues Nos. 1 and 2 related to undervaluation and insufficiency of court-fees. They do not survive. With regard to issue No. 3, it is no longer in dispute that the trees lie on plot No. 136 and the ditches lie mostly on plots Nos. 135 and 205 with reference to issue No. 4, it is no longer in dispute that the plaintiffs are the bhumidhars of plots Nos. 135 and 205. The only dispute that survives is with regard to the ownership of the four mango trees and the bamboo clump situate on plot No. 136. Although it was contended before me that the ditches were not dug by the contesting defendants and that they did not damage the trees. I do not think that anything much turns upon the same as the only relief claimed was the sum of Rs. 100/-for the damages caused to the trees, and that having been decreed on the concurrent finding that the contesting defendants did dig the ditches and damage the trees, I did not permit the learned counsel for the appellants to reopen that controversy in Second Appeal.