RAM AGYA Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) This second appeal under Section 100 of Code of Civil Procedure against the judgment and decree dated 13.5.1980 passed by IInd Addl. District and Sessions Judge, Faizabad in Civil Appeal No. 364 of 1977 Ram Agya v. Bhagwati Prasad and Ors., dismissing the appellants' appeal and upholding the judgment and decree dated 22.6.1977 passed by Munsif, Akbarpur in Regular Suit No. 277 of 1969, Bhagwati Prasad and Ors. v. Ram Agra and Ors..

(2.) I have heard Shri Sharad Dwivedi holding brief of Shri D.P. Dwivedi for the appellants and Shri A.S. Chaudhari for the respondents. Plaintiffs' case

(3.) The plaintiffs filed the suit for permanent injunction against the defendants-appellants and respondents Nos. 4 to 6 with the allegations that Bhikari was the owner in possession of ahata No. 21 and 22 situated in Village Kodara. Bhikari had also his residential house there. Bhikari died issueless leaving his widow Smt. Anarkali. Plaintiff No. 1 Bhagwati and his two sons plaintiffs Nos. 2 and 3 used to look after Bhikari and his wife Smt. Anarkali during their life time. During his lifetime, Bhikari executed a gift deed on 3.9.1954 in respect to the whole of his property including the disputed land in favour of the plaintiffs Nos. 2 and 3 and his wife Smt. Anarkali. The donees accepted the gift and came into the possession of the property covered by the gift after the death of Bhikari. The disputed land falling in ahata No. 21 and 22 and to the west of the house was in the shape of ghera. It was appurtenant to the house of Bhikari who became its absolute owner after the enforcement of U. P. Zamindari Abolition and Land Reforms Act, 1950. The disputed land used to be utilised for tethering cattle, keeping paddy straw, manure heap and other purposes connected with agriculture. A neem tree was also planted therein. A bamboo clump was also planted by the plaintiffs which stood on the disputed land. After the death of Bhikari plaintiff No. 1 also inherited the property being the mother's brother's son of Bhikari who died issueless. Plaintiffs also asserted their continuous possession over the disputed land falling in ahata No. 21 and 22 and shown by letters ABCDEFGHI in the site plan attached with the plaint. It has also been contended that the respondent No. 4 Gauri Shanker and father of respondent No. 5 Ram Murti and respondent No. 6 Ram Surat tried to interfere with the possession of Bhikari who had filed a Regular Suit No. 176 of 1946 in the Court of Additional Munsif against Gauri Shanker defendant No. 2, Ram Murat defendant No. 3 and Ram Surat defendant No. 4 for possession after the demolition of unauthorised structures. At that time, the defendant No. 1 Ram Agya was a minor under the guardianship of Gauri Shanker and father of Ram Murat and Ram Surat. He used to live with them. Mahadev father of defendants Nos. 5 and 6 was the karta of joint Hindu Family of which the defendant-appellant Ram Agya was a member. It was pleaded that the decree passed in Original Suit No. 176 of 1946 against the defendant No. 2 Gauri Shanker and father of defendant No. 3 and 4 is also binding upon the defendant No. 1 Ram Agya (defendant-appellant). The plaintiffs further stated that in the meantime of Kartik, 1963, the defendant started interfering with the possession of the plaintiffs over the land in suit by fixing pegs, keeping manure heap, fixing of a hand-pipe and also planted a neem tree and thereafter unlawfully occupied one biswan and five biswansi area of land of the ghera of the plaintiffs shown by letters ABCDEFGHI in the plaint map. The defendants also threatened to cut away the bamboo clumps from the disputed land. Therefore, the present suit for permanent injunction for getting the defendants restrained from interfering with the title and possession of the plaintiffs over the land in suit and for direction to remove the unauthorised fixtures was filed. Case of the defendants