BACHOO LAL Vs. VISHNU SHARMA DECD

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 15.9.1981 in Civil Appeal No. 44 of 1979 passed by IIIrd Addl, District Judge, Barabanki reversing the judgment and decree dated 28.4.1979 in Suit No. 99 of 1973 passed by Munsif, Ram Sanehi Ghat, district Barabanki.

(2.) I have heard Shri P.N. Mathur for the appellants and Shri U. S. Sahai holding brief of Shri H. S. Sahai for the respondents.

(3.) It appears that plaintiff Vishnu Sharma filed a suit for possession claiming that a parcel of land at about 5 ft. in width which was being used by him for passage and which had his door way may be restored to him by demolition of a wall raised by the defendants. The case of the plaintiff was that the parties to the suit belong to the same family. One Shanker Mishra was their common ancestor. Shanker Mishra had two sons Beni Deen and Ram Bharosey. Beni Deen had three sons Sita Ram, Ram Sanehi and Murli Ram. Sita Ram had died issueless. Ram Sanehi had three sons ; Surya Prasad, Kamlapati and Bishnu Sharma. Kamlapati Rarn had one son Hari Saran. Vishnu Sharma is the plaintiff in the case and Hari Saran is the defendant. Murli Ram had two sons Rameshwar and Ram Gulam. Beni Deen's brother Ram Bharosey had two sons Kanahiya Lal and Devi Dutt. Devi Dutt had died issueless whereas Kanahiya Lal had one son Bacchu Lal . The said Bacchu Lal is the defendant appellant No. 1 and the defendant appellant Nos. 2 to 5 are his sons. The plaintiff alleged that a house which included a cattle shed, ahata and sahcm was owned by Shanker Mishra. This house was situated in abadi plot No. 244. In the plaint map, the disputed property has been shown by letters A to H and QRFGH and KLPMNO which was situated in abadi plot Nos. 244, 243 and 241. Plot No. 244 belong to Shanker Mishra ; plot No. 243 alongwith the house and sahan belonged to Avadh Bihari and Ram Sagar sons of Bisheshwar and plot No. 241 belong to Beni Deen and Ram Bharosey. There was a partition between Ram Bharosey and sons of Beni Deen detailed in the plaint in which the house bounded by letters ASTBUH and OPMN fell into the share of Ram Bharosey and the house bounded by letters ABCDEFG and KLPO fell into the share of sons of Beni Deen. Sita Ram son of Beni Deen died issueless and thereafter a partition took place between Ram Sanehi and sons of Murli Ram. Rameshwar and Ram Gulam sons of Murli Ram got into their share the house bounded by letter SBCXWT. Ram Sanehi got into the share the house bounded by letters VXWCDEFG and house bounded by letters KLPO. Rameshwar and Ram Gulam also had a partition and started living separately. Rameshwar sold his share later on to Smt. Mansha Devi. She is still in possession of the purchased share of Rameshwar. In the partition between Ram Bharosey and sons of Beni Deen, a piece of land about 5 ft. wide east west bounded by letter Q1QHH1 was given to the sons of Beni Deen for passage and sitting purpose. This passage land was initially given by the ancestor of Ram Sagar and in the partition between Ram Sanehi and sons of Murli Ram, it fell into the share of Ram Sanehi. The house of Shanker Mishra was situated in abadi plot No. 244. Partition between Ram Bharosey and sons of Beni Deen took place about 100 years ago. The sons of Beni Deen were minor in that partition. Ram Bharosey retained the house for his own share whereas he gave the cattle shed, ahata and sahan in the shares of the sons of Beni Deen. The cattle sheds and ahata opened towards west. Door of Avadh Behari and Ram Sagar opened towards north and it reached upto the door of cattle sheds and ahata given into the hare of sons of Beni Deen. Therefore, Ram Bharosey gave 5 ft. wide land to the sons of Beni Deen. Ram Sanehi constructed a chabutara on this land. The plaintiffs' father Ram Sanehi reconstructed his own share in the compound and mortgaged it with Changa Lal on 15.9.1928 and on 3.10.1930, Ram Sanehi executed a deed in favour of Changa Lal relating to the southern share in plot No. 241. Ram Sanehi died in the year 1930. Sarju Prasad son of Ram Sanehi also died issueless. Plaintiff was minor at that time. He redeemed the ahata in abadi plot No. 241 on 24.12.1947 which was mortgaged by Ram Sanehi. The construction in abadi plot No. 244 fell down in due course of time. Plaintiff purchased abadi plot No. 243 from Avadh Behari and Ram Sagar through a registered sale deed dated 7.6.1955. Avadh Behari and Ram Sagar had one step brother Gir Raj. His share in the house and the sahan in plot No. 243 was purchased by Vireshwar, his own father. After accepting compensation for his share, Gir Raj abandoned his claim of 1/3 share in abadi plot No. 243. After that plaintiff and Kamlapati had a partition. The plaintiff took plot No. 244 in his share. He included plot No. 243 and plot No. 244 and raised construction in both the plots. The plaintiff had been in possession over the said property in that manner. Bachoo Lal defendant constructed a wall after removing the chabutara of the plaintiff. In spite of the notices, the defendant did not remove the construction of the wall. It is alleged that the defendants Nos. 1 to 5 thus illegally occupied 5 ft. wide land bounded by letter Q1QHH1. Plaintiff filed the suit for permanent injunction against the defendant for restraining from interfering in the possession of the plaintiff over sahan land detailed by letters QlHlYlKha. Plaintiff also filed a suit for possession over the land on which the defendants had raised their construction.