RAJ KISHORE Vs. HIRA

JUDGEMENT

(1.) This appeal under Section 100 C.P.C. has been brought against the judgment and decree dated 26.10.1988 passed by Sri Kashi Nath Pandey, VIIIth Additional District Judge, Azamgarh in Civil Appeal No. 204 of 1983, whereby having allowed the appeal, it has set aside the judgment and decree dated 28.04.1983 passed by the Munsif City, Azamgarh. As a result of allowing appeal the Lower Appellate Court has dismissed the suit also. It is thus a plaintiffs' second appeal.

(2.) The plaint case set up by plaintiffs, Raj Kishore, Kedar and Kamla, sons of Sri Ramnath is that the disputed holding, i.e., Araji No. 48, area 175 Kadi, shown in the plaint map as A, B, C, D was earlier Sirdari of Sri Ram Dev and now has become Bhumidhari. Ramdev had two sons, Markandey and Ramnath. Ramnath died earlier and the plaintiffs are sons of Ramnath. After the death of Ramdev, Markandey, son of Ramdev, and the appellants, who are grandsons of Ramdev, succedded property in dispute. Since Markandey was Karta of family and appellants were minor, the property was recorded in revenue records in the name of Markandey. After death of Markandey, the defendants, who are sons and successors of Markandey, are co-owners alongwith plaintiffs of property in dispute. Besides disputed holding, Markandey constructed a house at Araji No. 11, area 245 Kadi, situated at Mauja Usufabad, from the funds of joint family. At the time of separation, plaintiffs claimed their share in that house but Markandey told that it is his individual property. Consequently, plaintiffs instituted Original Suit No. 35 of 1974 for partition. The suit was decreed holding that plaintiffs of Suit No. 35 of 1974 had half of the share in the said house. The judgment and decree of Trial Court was confirmed after dismissal of Civil Appeal No. 323 of 1975.

(3.) Sri Kashi, father of defendants no. 1 to 5, started construction in the disputed land which comprises of a boundary wall, three rooms on eastern side and a verandah on northern side. When plaintiffs objected to the said construction, they came to know that Markandey has transferred by sale, the said land to Kashi. On inquiry the plaintiffs came to know that a sale deed was executed by Markandey in favour of Kashi on 18.03.1963. The disputed construction commenced by defendants' father in 1976 but when obstructed by plaintiffs, was stopped. The plaintiffs also took possession of entire land which is continuing. Since plaintiffs now apprehend a further construction and/or attempt to dispossess them from disputed land, therefore, a relief for mandatory injunction was prayed that defendants no. 1 to 5 be directed to remove entire construction already raised on disputed land and restore original condition of land. A decree for possession was also prayed and a decree of declaration in respect of sale deed dated 18.03.1963 was prayed that it should be cancelled. The suit was instituted by filing a plaint dated 02.08.1979, which was registered in the Court of Munsif Haveli, Azamgarh on 07.08.1979.