RAMJI RAI Vs. JAGDISH MALLAH

JUDGEMENT

(1.) -The plaintiffs filed a suit for a permanent injunction praying that the defendants be restrained from interfering in the possession of the land in dispute or from raising any boundary wall. It was alleged that the plaintiffs and the defendant No. 4 owned a house from the time of their ancestors and that their sehan was towards the South of the said house, which was in their possession much before the enactment of the U. P. Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as the Act). The plaintiffs further alleged that their palanis, cattle, troughs, etc. existed on the said land and the land was also being utilised for different household purposes. The plaintiffs also alleged that the disputed land was unbounded and that the plaintiffs had started the construction of the boundary wall after leaving a small passage between their house and the sehan. The boundary wall could only be constructed till the plinth level as their leave ended and they had to go back to Bombay where they were working. The plaintiffs alleged that when they came back again to the village they started the constructions again, but this time it was opposed by the defendants, hence the suit.

(2.) THE defendants denied the plaint allegations and submitted that the map shown in the plaint was incorrect. THE disputed land belongs to the defendants and their palanis existed on the land in dispute. THE defendants contended that the disputed land was being used for different household purposes by them. THE defendants had always been in possession of the land in dispute. It was also alleged that a passage always existed between the house of the plaintiff and the disputed land in question. THE defendants further alleged that they had constructed the wall, but the same could not be completed on account of the injunction order obtained by the plaintiffs in the present suit. THE defendants contended that the plaintiffs were always out of the village in connection with their service and were never tilling their agricultural land and in fact had let out their agricultural land to others, and therefore, there was no need of keeping any bullock or agricultural equipment or using the land in question for the aforesaid purposes. THE defendants further contended that the plaintiffs and other members of their family were living jointly and in the partition, the building in which the plaintiffs are residing presently came into their share. This building was previously being used for keeping cattle and for other household purposes. Further, there was no door towards the south of the plaintiffs' building and therefore, the plaintiffs had no direct access to the plot in question.

(3.) AGAINST the judgment of the appellate court, the plaintiff-appellants has preferred the present second appeal before this Court. At the time of the admission of the appeal, the following substantial questions of law was formulated, namely : "Whether the lower appellate court was justified in reversing the finding of the trial court that the land in suit was appurtenant to the plaintiffs' house."