PRAKASH AHIR Vs. VISHWA NATH AND ORS.

JUDGEMENT

(1.) This is a Defendants second appeal against the judgment and order dated 3 -10 -1978 of the 1st Additional District Judge, Gorakhpur, dismissing the appeal filed by the Appellant against the judgment and order dated 5.07.1977 of HI Munsif, Gorakhpur, decreeing the Plaintiffs' suit with costs.

(2.) The Plaintiffs -Respondents filed a suit against the Appellant for a decree of possession over the disputed land and for demolition of the constructions existing over it through the process of the court on the ground that the Appellant had illegally encroached upon their land in Creak No. 80 and had raised a Kothri thereon. The suit was contested by the Appellant alleging that Sabiq plot No. 68, area 15 decimal, was sold to them by Mohd. Abdul Rashid Khan on 22.08.1956 and since then they were in possession and the constructions were not new. The allegation of the Plaintiffs that they were Bhumidhar of plot No. 80 as recorded in the consolidation held in 1960 -61 having an area of .63 acres was denied.

(3.) On the pleadings of the parties several issues were framed. During the proceedings the necessity of preparation of a map were felt. The Plaintiffs were directed to summon the original settlement map of 1914 -15. Somehow or the other it was not summoned by the Plaintiffs and instead an application was filed by the Plaintiffs for preparation of a map on the basis of consolidation map. Later on the court Amin was directed to prepare a map on and basis of consolidation map. The Court Amin failed to find fixed points on the basis of consolidation map of 1960.61 and took the fixed points from the copy of the settlement map of 1914 -15. A report on the basis of such fixed points was prepared by the Court Amin and filed in court. Objections against the report were invited and 06.05.1977 was fixed for the purpose. However, as the Defendant -Appellant absented himself on that date the report of the Amin was confirmed in his absence and 5.07.1977 was fixed for final hearing. On the date of final hearing i. e. 05.07.1977 an application for adjournment of the case was filed on behalf of the Defendant -Appellant on the ground that he was ill since 05.05.77. The trial court rejected the application on the ground that there was no medical certificate in support of the illness of the Defendant from 5.05.1977 nor an affidavit to that effect had been filed. The affidavit in support of the adjournment application by one Durga Prasad was not believed. The Plaintiffs -Respondents were permitted to examine two witnesses after which they closed their evidence. As the Defendant -Appellant was not present no evidence in support of his case was forth coming. Arguments were heard on that date and the suit was decreed with costs.