M ZIAUDDIN AHMAD Vs. JAGMOHAN RAM

JUDGEMENT

(1.) This appeal has been filed by Munshi Ziauddin and others, who were plaintiffs-in a suit instituted by them, in the Court of the Munsif of Mohammadabad Gohna at Azamgarh, against Jagmohan Ram, the defendant-respondent for obtaining (1) a perpetual injunction directing the defendant to demolish certain enclosures and walls, constructed by him on sub-plots Nos. 12 and 13, which form part of the abadi plot No. 440 in village Baragaon, in the district of Azamgarh, and to have no concern with a garhi in plot No. 887 of the same village; and (2) a decree for possession over the plots aforesaid. Admittedly, the parties are co-sharers in village Baragaon, and there has been a perfect partition in the village and the abadi plot No. 440 has also been partitioned, as a result of which different portions of it have been allotted to different mahals and khewats.

(2.) The plaintiffs claimed to be the owners of sub-plot No. 12. This claim was contested; but it is no longer disputed that the plaintiffs are the owners of the said plot. The plaintiffs alleged that they had been exercising certain rights over the plot; but they have not been able to substantiate their allegation. They also alleged that the defendant had no right to make any construction on the plot aforesaid. The defendant asserted that on the plot in dispute there was his ahata, which was formerly enclosed by wire fencing and has now been enclosed by mud walls. As regards sub-plot No. 13, the plaintiffs pointed out in their plaint, that it was the sahan in front of the defendant's house, which stood on plot No. 14, and that he was entitled to use it as such but had no right to make any constructions thereon. It is not disputed that the defendant is a co-sharer in the plot along with the plaintiffs.

(3.) The plaintiffs' case was that in the year 1939 the defendant purchased the house of Fazal Karim, which stood on an adjoining subplot No. 11, and while rebuilding the same he made the enclosures and walls on sub-plots Nos. 12 and 13, which he had no right to do. They did not allege that they had ever held possession over the plots.