KEDAR NATH Vs. TESARI

JUDGEMENT

(1.) -Heard Shri H. O. K. Srivastava and Shri Mahesh Kumar for the appellant. No one appears for the respondents.

(2.) THIS defendant's second appeal arises out of Original suit No. 202 of 1970 for permanent injunction restraining the defendant from interfering with plaintiff's possession on plot Nos. 61 and 62/2 and to make any construction; and further to remove the bricks, kal, cattle-troughs and pegs from the land in dispute. The suit was dismissed by the trial court on 16.11.1973. The Civil Appeal No. 392 of 1973 was allowed by Civil Judge, Azamgarh on 20.10.1976. On 10.12.1976, when the second appeal was admitted the amendments in Section 100, C.P.C. were not notified.

(3.) THE trial court while deciding issue No. 1 as to whether the plaintiff's are the owners of the land in suit relied upon Kutumb Register (Ext. Ka A2), which shows the house number of Lachchoo as 45 and house number of Subhag as 44, and inferred that houses of these persons must be adjacent to each other. He also concluded from this document that Lachchoo and Subhag were sons of Dasai and are real brothers and that Subhag was elder to Lachchoo. THErefore, relying upon Ext. 1, which is copy of Khasra 1329F, in which Subhag was recorded as Shikmi of plot Nos. 61 and 62/2 found that Hari Charan son of Lachchoo was the owner and could sell the land to the defendant. After discussing the oral evidence on the point he found that defendants were in possession.