PHOOLMATI DEVI Vs. MANIK LAL

JUDGEMENT

(1.) This is second civil appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 19.4.1982 passed by the IInd Additional District Judge, Lucknow in Civil Appeal No. 109 of 1980, Smt. Phoolmati Devi v. Manik Lal and Anr., partly allowing the appeal and modifying, the judgment and decree dated 25.1.1980 passed by the Munsif South, Lucknow in Regular Suit No. 280 of 1972, Manik Lal and Anr. v. Smt. Phoolmati Devi, by which the suit has been decreed.

(2.) I have heard Shri Ved Prakash, advocate for the appellant and another Shri Ved Prakash (by the same name) as counsel for the respondents.

(3.) The case of the plaintiff-respondents is that their pucca shop existed over Plot No. 352 towards north abutting the public drain and thereafter there is Government road and also pucca well abutting that shop towards south lying in the middle of that Plot. Towards further south in Plot No. 353 there existed Dwarika Dheesh Temple in which the defendant-appellant was living and thereafter, there was part of Plot No. 350 now belonging to Lala Ram Swarup Rastogi. Adjacent towards east again there was part of Plot No. 350 now allegedly belonging to Narain Das Rastogi and towards west there was Plot No. 354 with the building existing on part towards further west now belonging to Vishnu Sahai and Shanker Sahai. Over eastern part of Plot No. 352, the plaintiff-respondents held a mandi for sale of 'dhak' leaves and the disputed pucca drain running south to north meeting the public drain running east-west towards north and disputed drain abutting the western disputed strip of land towards east by the side of the plaintiff's shop and well. The plaintiff-respondents filed the suit claiming exclusive title and possession over the entire Plot No. 352 including the western portion of land in suit and the pucca drain running south to north in the middle of that Plot No. 352. It was alleged that the defendant-appellant was threatening to demolish 'pucca' drain and take forcible possession over the disputed western portion of Plot No. 352 on or about 27.7.1952. It was prayed that the defendant-appellant be restrained from demolishing any brick work in the plaintiffs' drain and diverting any water from the southern drain to the western drain or interfering with the plaintiffs' possession over western portion of the said Plot of land in holding the mandi for sale of dhak leaves or for any other purpose or in any manner ousting or interfering with the possession of the plaintiff-respondents.