BAURAM ALIAS DUKHAN Vs. MUNNI AND

JUDGEMENT

(1.) TARUN Agarwala, J. This is plaintiffs' second appeal having lost from both the courts below. The plaintiffs filed a suit for permanent injunction restraining the defendant Nos. 17 to 19 from interfering in their possession over the land in question. The plaintiffs alleged that in Plot No. 837, there existed their ancestral house and that plot No. 248 was an open piece of land, which was their sehan. The plaintiffs alleged that the land initially belonged to the ancestors of defendant Nos. 1 to 16 and pursuant to a partition amongst the ancestors of Nos. 1 to 16, plot No. 248 fell into the share of the father of defendant No. 1, namely, Ram Jatan, who came into possession and after the death-of Ram Jatan, defendant No. 1 came into possession and executed a surrender deed dated 6. 2. 1967 in favour of the plaintiffs and since then, the plaintiffs are in possession. The plaintiffs also contended in the alternative, that even, otherwise, prior to the surrender deed, they were in possession and had planted the trees and that the land was now abadi and after the enforcement of Act No. 1 of 1951, the plaintiffs are the owners and are in possession. The plaintiffs further contended that they were in possession for several years and consequently, had perfected their rights also by adverse means.

(2.) THE defendant Nos. 17 to 19 resisted the suit and contended that the defendant Nos. 1 to 16 had 1/12th share in the land which was sold to them vide sale deed dated 12. 1. 1976 and 6. 4. 1967 and since then, they are in possession. THE defendants further submitted that the land was not an abadi land and that it was grove. THE defendants further contended that the plaintiffs had never planted the trees and that the defendants Nos. 1 to 16 had planted the trees. THE defendants further submitted that the plaintiffs were not the owners nor the defendant No. 1 had any right to execute a surrender deed.

(3.) THE learned counsel for the appellant submitted that no issue was framed on the point of possession and therefore, the courts below committed an error in dismissing the suit and that a survey commission ought to have been issued not only to locate and identify the land but also to give a finding on the point of possession. THE learned counsel further submitted that once it was found by the Court below that the plaintiffs were the owners of 1/12th share of the land in question, the courts below should have granted the injunction and the suit should have been decreed at least to the extent of 1/12th share or alternatively, the matter should have been referred under Section 331a of U. P. Zamindari Abolition and Land Reforms Act.