BANAIL Vs. PRABHAWATI DEVI

JUDGEMENT

(1.) This Second Appeal is against the judgment and decree dated 15.7.87 of Shri Satyanand, IIIrd Additional District Judge, Gorakhpur by virtue of which the learned Additional District Judge, has set aside the decree and judgment of the lower court dated 24.1.1985.

(2.) The learned trial Court decreed the suit of the appellant for permanent injunction and also for mandatory injunction against the defendant-respondent with respect of the disputed property. There was an allegation in the plaint that defendant dispossessed the plaintiff from the portion of the disputed land during the pendency of the suit, marked with letters A.E.F.D. in the site-plan prepared by the Amin, and also started filling the foundation and raised certain construction.

(3.) Admittedly, the controversy related as to whether co-sharer can file a suit for injunction and demolition against any cosharer who has raised construction. The question of law which was framed by the appellant at the time of admission is as follows : 1. Whether the judgment and decree of lower appellate court is in contravention of Section 44 of Transfer of Property Act inasmuch on own finding of the lower appellate court that there being no partition between the plaintiff-appellant and Janardan and property in question being residential, the suit of the plaintiff-appellant could have been dismissed by the lower appellate court?