SUSHIL KUMAR Vs. PARASHURAM

JUDGEMENT

(1.) HAVING lost from both the courts the defendants -appellants have filed this appeal assailing the judgment and decree passed by the Civil Judge (Junior Division), Sitapur in Regular Suit No.523 of 1990 and the judgment and decree dated 29.07.2003 passed by the District Judge, Sitapur in Regular Civil Appeal No.73 of 2003.

(2.) THE plaintiffs -respondents have filed a suit for permanent injunction alleging therein that the plot in dispute No.738 area 0.50 decimals is their Bhumidhari land to which the defendants -appellants have no concern. However, the defendants -appellants have been threatening to take forcible possession of the disputed land and also cut the trees standing thereon. With these averments, the plaintiffs -respondents prayed for a relief for permanent injunction. The defendants -appellants contested the suit by filing written statement and denying title and possession of the plaintiffs -respondents. However, they admitted that the plaintiffs -respondents are Bhumidhars in respect of only 0.40 decimals of land in plot No.738 and the rest 0.10 decimals land is Banjar. They also alleged that they have obtained a lease of the said Banjar land after completing due formalities and have also been given possession thereof. With the aforesaid averments the defendants -appellants prayed for dismissal of the suit.

(3.) LEARNED trial court framed issues on the basis of the pleadings of the parties and on the basis of evidence on record decided all the issues in favour of the plaintiffs -respondents and thereby decreed the suit restraining the defendants -appellants from interfering in peaceful possession of the plaintiffs -respondents. The defendants -appellants preferred regular civil appeal and assailed the judgment and decree passed by the trial court merely on the ground that the decree has been passed only on the basis of the report submitted by the Commissioner, who inspected the land in dispute and submitted a report along with the map which was confirmed subject to evidence of the parties. The Commissioner did not show the correct position of land in dispute and the learned trial court merely on the basis of the Commissioner's report decreed the suit. The learned first appellate court dismissed the appeal with the finding that the defendants -appellants have already admitted in their written statement that the plaintiffs -respondents are the owners of 0.40 decimals of disputed land and the learned trial court decreed the suit only in respect of that portion.