PANNA LAL Vs. RAM DEO

JUDGEMENT

(1.) S. K. Phaujdar, J. This second appeal is at the instance of the defendant, who are aggrieved by the judgment of the 1st Additional District Judge, Jaunpur, in Civil Appeal No. 58 of 1974, dated 11-9-79. The first appellate court had modified the decree of the trial Court passed in original Suit No. 202 of 1968 by the Munsif, Shahganj, on 11-4-74, whereby the suit of the plaintiff Ramdev was dismissed.

(2.) THE plaintiff Ramdeo, predecessor of the present respondents, filed the suit for plot No. 293 situated in village Kheta Sarai measuring -09 acres claiming the land to be his tenancy plot. It was stated that in the western portion of this land, as shown by letters ABC and D in the map annexed to the plaint, he had his own construction. Appurtenant to this construction there lay a portion of the- land marked by the letters B C D E and F which was being used by him as a Sahan- and Pichwara, to the further east of this Pichawara there was a well and a Paudar belonging to the plain tiff. Next to the well and Paudar a further portion of 0. 02 acres of this very plot was there. THE defendants purchased this 0-02 acres of land from the plaintiff by means of a sale-deed and were in possession thereof. But. they had no concern with the western portion of the land beyond the above said 0-02 acres land. It was alleged that in June, 1986 when the plaintiff wanted to make a construction on the portion marked by letters B, C, D, E and F, th'e defendant threatened to interfere. According ly, the plaintiff filed the suit for prohibitory injunction to restrain the defendant from such act.

(3.) IT was argued that the first appellate court while reversing the judgment of the court below failed to give reasons for his conclusion and when it was only an appreciation of the oral testimony, the trial Court finding should be given more weight than that of the first appellate court as the trial Court had a chance to look to the demeanure of the witness examined before it. The appellant further contended that no injunction could have been granted without cancellation of the deed for which the plaintiff had not made any prayer and when there was no finding of possession, no injunction should have been granted. IT was further contended that the learned first appellate court had overlooked certain admissions made by the plaintiff. On behalf of the respondents it was contended that the plaintiffs have sold only 2 decimals and not all the 9 decimals in plot No. 293 and the paper was wrongly prepared. No possession was delivered to the defendants. According to the learned counsel, no prayer for cancellation was necessary as the plaintiffs knew that it was only a Yaddast that was being written.