BHAWANI PRASAD Vs. RAM HIT

JUDGEMENT

(1.) This is a Defendant's appeal in a suit brought by the Plaintiff for demolition of certain constructions detailed at the foot of the plaint and for the issue of a permanent, injunction restraining the Defendants from making the constructions over the land in suit. The dispute relates to a portion of plot No. 429, which, according to the Plaintiff, was joint land and over a portion of which an Osara had been built by the Defendants who had no right to do so. The defence was that it was not joint land, but this land exclusively belonged to the Defendants because there had been a partition by virtue of which plot No 422 was given to the Plaintiff and plot No. 429 was given to the Defendants.

(2.) The trial court accepted the defence story and dismissed the Plaintiff's suit holding that plot No. 429 exclusively belonged to the Defendants. The lower appellate court has reversed that finding and has recorded a finding of fact that the land was joint and therefore ordered demolition. Aggrieved by that decision the Defendants have come to this Court in appeal.

(3.) The Defendants do not contest the findings of fact recorded by the lower appellate court that this was a joint land, but it has been contended on their behalf that since this construction has been in the Sehan Darwaza which is in front of the house of the Defendants they were entitled to maintain it by virtue of S. 4 of the UP Village Abadi Act, which provides as follows: