SHAMBHU NATH TIWARI Vs. KAPIL DEO PANDEY

JUDGEMENT

(1.) This Second Appeal is preferred against the judgement and decree dated 03.05.1979 passed by 1st Additional District Judge, Ballia allowing the Civil Appeal No. 330 of 1977 setting aside the judgement and decree passed by 6th Additional Munsif, Ballia arising out of Original Suit No. 219 of 1971.

(2.) The brief facts which give rise to this appeal are that the appellant plaintiff (hereinafter referred to as, 'the appellant') filed a Suit against the respondent defendant (hereinafter referred to as, 'the respondent') for permanent prohibitory injunction restraining them from interfering in his possession over the disputed land. He also claimed a relief for mandatory injunction for removal of a wall. The appellant also annexed a site plan to his plaint and in the alternative a relief of possession was also claimed as per the plaint allegations. Father of the appellant who could not join the Suit was arrayed as defendant in the Suit purchased a disputed land from one Abhiraj Pandey about thirty to thirty five years ago and constructed a house over there and after the purchase the appellant and his father were in possession over the said land and after taking the above land build a house on the above land and the remaining land to the East of that house up to the public way was used as sehan land. It was further alleged that the respondent held his house to the further east of the above public way and his sahan land is towards the west of his house. It is further alleged that in their absence, the respondent illegally raised a wall and when the respondent refused to remove the said wall, this present Suit is filed.

(3.) The defendant denied the whole allegations alleging that the disputed land is their own sahan land and the wall is an old wall and they have also put a thatched structure over it and the respondent is in continuous possession over the same.