MUSTAFA Vs. SHIV RAM AND OTHERS

JUDGEMENT

(1.) THE plaintiff Hanuman and others instituted Original Suit No. 46 of 1975 for mandatory injunction against the defendants Mustafa and others for demolition of the constructions existing on the land shown by letters B, C, C-1, B-2 of the plaint map and to put them in possession over it. During the pendency of the suit Hanuman transferred all his rights in the house and the suit land in favour of plaintiff No. 2, Shiv Ram vide registered sale deed dated 27.2.1978. The said suit was dismissed vide judgment and order dated 3.8.1990. However, the appeal of the plaintiffs was allowed and the suit was decreed by the lower appellate Court on 26.2.1998. It is against the aforesaid judg­ment, order and decree of the lower appellate Court the defendants have preferred this appeal.

(2.) THE dispute in the suit and now in this appeal is basically with regard to the location of the disputed land and the construction thereon i.e. as to whether the same are part of Abadi plot No. 354 or of 356. Undisputedly, plaintiffs are the owners of Abadi plot No. 354 whereas defendants are the owners of Abadi plot No. 356. The Court of first instance in dismissing the suit held that the land in dispute and the constructions are not situate on Abadi plot No. 354. The lower appellate Court, on the other hand, on the basis of survey report dated 7.9.1987 held the constructions to be on Abadi plot No. 354 and accordingly, after setting aside the judgment and order of the lower Court allowed the appeal decreeing the suit.

(3.) FIRST , the judgment and order of the lower appellate Court ts an ex parte judgment which has been passed without hearing the defendants. The defen­dants have applied to the District Judge for the transfer of the appeal to some other officer wherein an order of stay was passed on 26.2.1998 but the lower appellate Court ignoring the same, pronounced the operative portion of the judg­ment on the same very day and the detailed judgment was delivered later on.