LACHHIMI NATH PATHAK Vs. BHOLANATH PATHAK

JUDGEMENT

(1.) This second appeal filed by two of the defendants is directed against the judgment of Hari Har Sharan, Civil Judge, Allahabad, reversing the decree of the trial Court and decreeing the plaintiff's suit.

(2.) The dispute related to a piece of land which was said to be part of No. 192 and which was in the form of an akhara. The plaintiff alleged that he had been in adverse proprietary possession of this land for more than twelve years but defendants Nos. 2 to 5 in collusion with defendant No. 1 started proceedings under Section 145, Cri. P. C. and obtained delivery of possession from the Court of the Magistrate. The plaintiff alleged that neither defendant No. 1 not any other defendant remained in possession of the land in dispute and consequently the present suit was filed for a mere declaration and injunction restraining the defendants not to take possession over the land in dispute. The relief for possession is conspicuously absent from the plaint.

(3.) The defence was that the land in dispute was not part of No. 192 and that the plaintiff had nothing to do with the land in dispute. It was said to belong to one Shiv Sahai alias Sahai who was the predecessor of defendants Nos. 2 to 6. It was further alleged that one Sita Ram started an akhara on the land in dispute sometime in the year 1931 and executed a sharkhat in favour of Lakshmi Nath defendant and the predecessor in interest of the other defendants and so Sita "Ram and after him defendant No. 1 remained in possession of the akhara on behalf of defendants Nos. 2 to 6. Plaintiff's possession was denied.