KUNJ BEHARI Vs. LAL BEHARI

JUDGEMENT

(1.) THIS is an execution second appeal. The decree under execution was passed by the High Court in First Appeal From Order No. 87 of 1964 (Kunj Behari v. Lal Behari). The trial court had dismissed the suit by judgment dated 23rd May, 1969. The plaintiff appealed therefrom. That was Civil Appeal No. 231 of 1963 in the court of the District Judge, Gorakhpur and was allowed by that court's judgment dated 21st January, 1964. The dismissal of the suit was set aside and the case was remanded for a trial de -novo after re -framing of issues and clarification of pleadings and allowing the parties a chance to lead fresh evidence. The said First Appeal From Order No. 87 of 1964 was directed against (hat judgment of the court of the District Judge, Gorakhpur. The relief claimed in the suit, as originally filed was for a permanent injunction restraining the defendant from demolishing a wall (which separated the houses of the parties) and encroaching upon the plaintiff's land on his side of the wall. The defendant claimed that the wall as well as a portion of the land beyond it on the plaintiff's side belonged to him. This land was shown by letters CEGD on the map annexed to the written statement. This court held that the wall belonged to the defendant but also held that the very success of the defendant's claim that the wall had been built by his ancestors" is fatal to his claim to the narrow portion of the land lying on the plaintiff's side of the wall. "In the result this court allowed the appeal and set aside the remand order, and instead, while dismissing the plaintiff's suit for injunction restraining the defendant from interfering with his possession of the wall or demolishing the wall, decreed his suit for injunction restraining the defendant from interfering with the plaintiff's possession of the narrow portion of the land lying to the south of the wall.

(2.) IT appears that after the remand order, before the First Appeal From Order was admitted by this Court, an application for amendment of the plaint was allowed by the trial court's order dated 24th February, 1964, and instead of the relief of injunction restraining the defendant from demolishing any wall or from damaging in any manner the plaintiff's house shown by letters Aa, Ba, Sa, Da, Ya, Pha, Jat in the sketch map at the foot of the plaint, the relief for demolition of constructions and possession over 25' east -west and 7' wide north -south land shown by letters Sa Da Ya Va on the plaint map was claimed. The defendant appears to have applied for a revision of the order allowing the amendment, That revision, being Civil Revision No. 1145 of 1964, was heard by the same learned Judge of this Court and dismissed on 14th March, 1966, that is, on the same day on which the First Appeal From Order No. 87 of 1964 was allowed as aforesaid. This Court observed that the defendant had raised certain constructions on the land in suit whereupon the plaintiff applied for amendment of the plaint which was allowed. This Court did not see any reason to interfere with the exercise of its discretion by the trial court, and also observed that the suit itself having been disposed of, the application had become infructuous. The suit had been disposed of by this Court's judgment in First Appeal From Order No. 87 of 1964. The result was that the relief of injunction that was granted by this Court was not a relief claimed in the plaint. The relief claimed in the plaint was for demolition of the constructions raised on the land Sa Da Ya Va 25' long east -west and 7' wide north -south. The relief granted by this Court was an injunction restraining the defendant from interfering with the plaintiff's possession over that land. From the trial court's order dated 24th February, 1964, on the application for amendment of the plaint, it appears that the constructions which were sought to be demolished had been raised after the dismissal of the suit by the trial court and during the pendency of Civil Appeal No. 231 of 1963 in the court of the District Judge, Gorakhpur. According to the plaintiff's allegation in the amendment application the wall in respect of which he had claimed an injunction restraining the defendant from demolishing it, had already been demolished by the defendant. That relief was refused by this Court on the finding that the wall belonged to the defendant, and the relief decreed by this Court was an injunction restraining the defendant from interfering with the plaintiff's possession on the narrow strip of the land to the south of the wall. This narrow strip of the land appears to be the land 25' long east -west and 7' wide north -south shown by letters Sa Da Ya Va in the plaint map, to the south of the defendant's house, although the shape of the Sa Da Ya Va as shown in the plaint map does not accord with its dimensions The shape of the land is better shown on the map at the foot of the written statement by letters CDEG although there appears to be a slight difference in the dimensions.

(3.) THIS order was confirmed by the court of the IIIrd Temporary Civil and Sessions Judge, Gorakhpur on the judgment -debtor's appeal, being Civil Appeal No 302 of 1968 vide -judgment dated 30th May, 1970.