MATA BADAL Vs. MOOL CHAND

JUDGEMENT

(1.) THIS is a plaintiff's appeal. The suit giving rise to this appeal was instituted on August 26, 1963 by Mata Badal with the allegation that plot No. 26 is part of his Sehan appurtenant to his residential house. Since long he has had his Kolhar on this land. For nearly 17 or 18 years prior to the suit he claims to have had one mango tree also planted on this land. It was further urged that plot Nos. 23 and 24 are also comprised in his Sehan. In plot Mo. 23 he has had mango trees for nearly 17 -18 years planted by him. The house of the defendants is situate on plot No. 25. In or about June 1963 the defendants encroached upon the portion shown by letters ABCDEF in the sketch map appended to the plaint without having any authority for the same. The land thus encroached forms part of plot Nos. 24 and 26 above mentioned. The relief sought is mandatory injunction for a direction to the defendants to remove the encroachment made by them and for restoration of possession to the plaintiff.

(2.) IN defence it was pleaded that the defendants have had ancestral house in the village. The Sehan belonging to the defendants is situated to the north of the house. The defendants have had one mango tree belonging to them. The plaintiff has no concern with plots Nos. 23 and 24. Plot No. 26 was Parti. The defendants were in possession of it. In part thereof towards the north the plaintiff used to install his Kolhu during crushing season but at the end of the season the Kolhu used to be removed and the land retained in possession of the defendants. The construction raised by the defendants is on the foundation of the old structure vesting in them under Section 9 of U.P. Act 1 of 1951.

(3.) THE lower appellate Court held on April 21, 1973 that the plaintiff has had his Sehan to the west of his house. Plot No. 26 is situate to the north of the house of the defendant. Plot No. 24 is to the east of the defendant's house and plot No. 23 is to the south of plot No. 24. According to the partition map drawn in 1924, the house of the defendants situated in plot No. 25 has had its pending towards the north in plot No. 26. The finding arrived at thus is that the land comprised in plot No. 24 is not appurtenant to building held by the plaintiff, who was the zamindar of the area. Considering the oral evidence on the record including the testimony of P.W. Virendra Kumar and the relevant topography, the lower appellate Court held that plot No. 26 constitutes the Sehan of the defendants. It was then observed that merely due to keeping his Kolhu on a part of plot No. 26, the plaintiff could not claim to be the owner of the entire plot No. 26. There is no finding recorded, however, in relation to the trees. The appeal was allowed in the result and the plaintiff's suit was dismissed in toto.