RAM DEHAL Vs. RAM KISHORE

JUDGEMENT

(1.) THIS is a second appeal by the Defendant -Appellant against the judgment and decree dated 8 -11 -1973 passed by the I Temporary Civil and Sessions Judge, Jaunpur. The Plaintiff -Respondents filed a suit for perpetual injunction restraining the Defendants from interfering with his title in respect of the suit land and in the alternative the Plaintiffs also claimed recovery of possession. The suit land has been shown in the Amin's map 29 Ka in red colour, meaning thereby, by letters ABCDEFGHSP. The learned Munsif, Jaunpur decreed the suit for injunction only with regard to a part of the suit land which is situated towards east of the vertical line running from north to south and ending at the point, shown by letter O in the map 29 Ka. For convenient description of the land, for which the suit was decreed, it can be stated that the suit was mainly decreed in respect of the portion of the suit land described as Khandhar Nizayee in the map 29 Ka. For rest of the portion of the said land, the suit for injunction was not decreed. The alternative relief of possession was not allowed by the lower court, as the lower court found that the Plaintiffs were already in possession of the land in respect of which the suit was decreed. Rest of the suit was dismissed. As the suit in respect of the whole suit land was not decreed, the Plaintiffs filed appeal before the District Judge and also the Defendants preferred appeal, as the suit was decreed in respect of a part of the land by the learned Munsif. Both the cross appeals were decided together by the learned appellate court. The learned appellate court modified the decree of the lower court in that it decreed the suit for perpetual injunction in respect of the bigger area, shown by letters G, H, S, P, A, B, C, D, in the map 29 Ka. This portion is mainly covered by Khandhar Nizayee and Khandhar Dalan as shown in the map 29 Ka. Having modified so the judgment and decree of the trial court, the learned appellate court accordingly dismissed both the appeals.

(2.) AGGRIEVED by the judgment and decree of the learned appellate court, the Defendants Appellants have filed the appeal in this Court. I have heard the learned Counsel for the parties at length and have carefully perused the judgments of the courts below. I find a manifest error in the orders of the courts below. The suit land according to the order of the lower court has been clearly shown in red colour and by the letters ABCDEFGHSP in the map 29 Ka. Both the parties to the suit claimed this entire land belonging to themselves. So the question for consideration before the courts below was whether the suit land shown in red colour and described by letters A, B, C, D, E, F, G, H, S, P, in the map 29 Ka, either belongs to the Plaintiff or to the Defendants. As already pointed out, the lower court decreed the suit of the Plaintiffs only in respect of a portion of the land in suit. It came to the conclusion that a part of the suit land belonged to the Plaintiffs and a part belonged to the Defendants. From the judgment of the lower court, it is clear that a small portion belonged to the Plaintiffs and much bigger portion belonged to the Defendant of the suit land. In appeal, the approach of the learned appellate authority was also the same in that the appellate court modified the judgment and decree of the lower court observing that the Plaintiffs were owners in possession of slightly a bigger area of the suit land, shown by letters G, H, S, P, A, B, C, D. The result is whereas the lower court decreed the suit for perpetual injunction in respect of the Smaller area of the suit land the learned appellate court added some more area of the suit land in the decree. After the judgments and decree of the court below, the result remained the same that the suit land was divided into two portions, one portion of which was held to have belonged to the Plaintiffs and the other portion to the Defendants. It is this approach of the courts below which, in my opinion, is patently erroneous. When the suit land wan unambiguous and clearly described in the map 29 Ka and when both the parties claimed their exclusive title and possession in regard to the same, then the question for consideration was whether the suit land as a whole belonged to the Plaintiffs or to the Defendants. By having found that the suit land partly belonged to the Plaintiffs and partly to the Defendants, the courts below have made out absolutely a new case which was not set up by either party. The point is whether a court is empowered to cull out a new case. In my opinion the clear answer of this question is in negative. When both the parties claimed their exclusive title and possession to the suit land -well defined and clearly demarcated, then the duty of the court is to make an appraisal of the evidence led by the parties with regard to the entire suit land and take a decision whether the suit land belonged to the Plaintiffs or to the Defendants. The approach of the courts below is erroneous, inasmuch as it gave rise to an anomalous situation which is just contrary to the respective causes that have been set up by the parties. It is no body's case that the suit land partly belongs to the Plaintiffs or partly to the Defendants. The case of the Plaintiffs was that the entire suit land was Abadi land and that belonged to them. On the other hand, the Defendants claimed that the suit land was partly abadi and partly in their cultivator possession. The courts below having made out a case which is contrary to the respective cases of the parties, I am of the considered view that the judgment and decree of the appellate court deserve to be set aside and the matter has to be remanded to the lower court for being re -decided.