ASHARFI Vs. MUKAT LAL

JUDGEMENT

(1.) These two appeals arise from the same suit being suit No. 398 of 1982. In the suit, appellants of Second Appeal No. 2095 of 1989, namely, Smt. Asharfi, Smt. Rameshwari, Satya Dev and Ram Avtar were defendant Nos. 1 to 4, whereas Sohan Lal appellant of Second Appeal No. 416 of 1990 was defendant No. 5. The suit was filed by the plaintiff-respondent, Mukut Lal, claiming injunction against the defendant Nos. 1 to 4 so as to restrain them from demolishing staircase (Zeena) marked by letters 'a, 'ba', 'sa' and 'da' and from interfering with his possession over the said Zeena. According to the plaint case of Mukut Lal, Sohan Lal-defendant No. 5 was using the Zeena with his permission though he had no right or title in the said Zeena. He was made formal party though no relief was claimed against him. Against the decree passed by the trial Court, appeal was filed by defendant Nos. 1 to 4, which is Appeal No. 206 of 1983. The appeal of defendant Nos. 1 to 4 was dismissed. However, while dismissing the appeal, the first appellate Court also set aside the finding which was recorded by the trial Court in favour of Sohan Lal, his brother. Because of setting aside of the finding about the joint ownership of Zeena by him and Mukut Lal, Sohan Lal-defendant No. 5 has filed Second Appeal No. 416 of 1990. Since common questions for fact and law are involved in both the appeals, they are being decided by a common judgment. Facts of the case so far as it is necessary for deciding the appeals are concerned, are as follows:

(2.) IN appeal No. 2095 of 1989, which has been filed under Section 100 of the Code of Civil Procedure, 1908 defendants 1 to 4 have taken exception to the view which has been expressed by the courts below on issue No. 1 that the sale-deed executed by them on 1. 2. 1964 in favour of the plaintiff also included the disputed zeena apart from the land admeasuring 61' x 21' 3". It was con tended by the learned counsel on behalf of appellants that the courts below have il legally read/interpreted the sale deed dated 1. 2. 1964 (Ex. 1) so as to illegally include in it a property which was not at all its subject-matter; according to the learned counsel what sold was specifically described in the map which had been appended to the sale deed (Ex. 1) and also by giving its boun daries and measurements in the sale deed and nothing else was sold. On the other hand, on behalf of the plaintiff Mukut Lal it was asserted by his learned counsel that the zeena in dispute was specifically described in the sale deed as the property sold along with the land admeasuring 61' x 21' 3". It was emphasised that the measurement which was given in the sale deed was only of the land which was sold in the sale-deed along with the zeena. The measurement and the boundaries was not in respect of all the properties which were sold by the appel lants.

(3.) Upon hearing the arguments of the learned counsel for plaintiff Mukut Lal and defendants 1 to 4 the scope of this appeal (No. 2093 of 1989), which has been filed by defendant Nos. 1 to 4 and the controversy involved in it is confined to the answers of the question as to what was the property which was sold to the plaintiff vide sale deed dated 1. 2.1964 (Ex. 1) by the appellants ; whether tie zeena in dispute in the suit too as sold through that sale deed ?