HARI KISHAN Vs. MAHESH SINGH AND OTHERS

JUDGEMENT

(1.) This is plaintiff's appeal.

(2.) The plaintiff was bhumidar of plot no. 768 situate in village Doghat, the western portion of this plot is comprised in a grove and the plaintiff has denoted it in the sketch map at the foot of the plaint by letters Aa Ka Kha Ga. A portion out of plot no. 768 measuring 4 bighas 17 biswas and 5 biswansis was transferred by the plaintiff to the defendants under a registered deed of sale on April 5, 1970. That portion is denoted by the plaintiff by letters Aa Cha Chha Ja Sa Ba. The plaintiff maintains that portion Aa Ba Sa Da was not transferred to the defendants. There is a Khaye or raised boundary wall around the grove held by the plaintiff. This exists also towards east and on that side there is also khandak or ditch in the width of nearly 1/2 metre and deep to the same extent which is meant for earth, therefrom being utilised in maintaining the said boundary wall around the grove. On April 5, 1970 itself there was an agreement in writing entered into between the parties whereby it was made clear that defendant-vendees shall have no right over the ditch or khandak towards the eastern boundary wall of the plaintiff's grove or the trees standing thereon. Despite this the defendants threatend and intended to include within their land the ditch belonging to the plaintiff and hence the suit was instituted on Oct. 14, 1970 for perpetual injunction. During the pendency of the suit, the defendants encroached upon a portion of the said ditch denoted by letters Aaa Ba Dha Pa in the sketch map appended to the plaint covering 210 ft in length and 4 ft, in width. The plaintiff, therefore, amended the plaint by his application 32-A made on Aug. 23, 1971 claiming the relief for possession in respect of that portion. The defendants resisted the suit pleading that the portion As Ba Sa Da is included in the land purchased by them and that there has been no ditch or Khandak towards the east. It was also pleaded that the suit does not lie in the civil court.

(3.) The trial court held on Jan. 18, 1973, that the main relief claimed in the suit is that of perpetual injunction and hence the suit lay in the civil court. On merit, the finding recorded by the trial court on Oct. 12, 1973, was that the land in dispute does not belong to the plaintiff and hence the suit came to be dismissed. The lower appellate court recorded the finding that the civil court cannot grant the relief of possession to the plaintiff though there is no bar to the relief of permanent injunction being granted in the suit giving rise to this appeal. It was further held that the plaintiff had not established his title in respect of the land in dispute and that the agreement dated 5-4-1970 having been entered into prior to the execution of the deed of sale, it may be that the same, was modified or rescinded by the subsequent deed of sale. The appeal was, consequently, dismissed by the lower appellate court on April 12, 1975. Aggrieved, the plaintiff preferred this appeal.