RAGHUVAR SAHAY MEHROTRA Vs. PRAMOD KUMAR KAPOOR

JUDGEMENT

(1.) P. K. Chatterji, J. This Second Appeal arises against the judgment and order dated 22-7-1999 passed by the Vth Addl. District Judge, Sitapur in Civil Appeal No. 175 of 1982 arising out of R. S. No. 176 of 1979 decided by Vth Addl. Munsif, Sitapur vide judgment and order dated 6-9-1982.

(2.) FACTS of the case, in brief, are that the plaintiff-appellant filed a suit for permanent as well as mandatory injunction against the defendant-respondents. The disputed land which is part of the Hata of the plaintiff-appellant, is situated in between the houses of the parties. There is a Rasta adjacent to this land towards north and thereafter, situated the house of defendant-respondents. Since the respondents threatened to take forcibly possession by constructing building over the disputed land, the suit was filed by the plaintiff appellant and ad interim injunction was granted. Some constructions were also raised by the defendant-respondents during pendency of the suit and, therefore, relief for demolition was also sought for by making amendment in the plaint. The defendant-respondents protested the suit and claimed his right and title over the disputed land as he used the same to keep their cows and for this purpose their pegs (Khuntas) and troughs (Nandas) were there. A commission was issued by the trial Court and the Commissioner submitted his report alongwith map which was brought on record. The Commissioner found that one side of the disputed land was dug. However, he did not found any peg or trough on the land in question. The said suit was decreed with cost by the trial Court with direction to the respondents to remove their walls and tin-shed from the disputed land. The Court also granted permanent injunction restraining the defendant-respondents from interfering in the possession of the plaintiff-appellants. An appeal was fled against the order of trial Court by the defendant-respondents which was allowed and the judgment and the trial Court was set aside and the case was remanded back to the lower Court for decision afresh after framing necessary issues and giving proper opportunity to the parties for adducing evidence. The plaintiff-appellant filed a F. A. F. O. No. 149 of 1986 against the appellate order before this Hon'ble Court which was allowed thereby setting aside the order of the appellate Court and it was directed by the Hon'ble Court that the Appeal No. 175 of 1982 will he heard on merits by the first appellate Court. On remand the Vth Addl. District Judge, Sitapur heard the appeal of the defendant-respondents and allowed it and judgment and decree dated 6-9-1982 was set aside and the suit of the plaintiff appellant was dismissed with cost. Hence, this Second Appeal.

(3.) HEARD learned Counsel for the appellant as well as the learned Counsel for the respondent. I have also perused the record.