RAM SHANKER Vs. MAHATMA GANDHI H S SCHOOL

JUDGEMENT

(1.) THIS a plaintiff's second Appeal in a suit for demolition of wall shown by letters B C and foundations shown by letters CD, DF, FJ, EM, and any other constructions which the defendants may make during the pendency of the suit and for possession over the land underneath, shaded yellow on the plaint map and on which the defendants may be found to be in possession. The suit was decreed by the trial court but was dismissed by the lower appellate court. The plaintiff's case was that he owned a plot in the nature of Chakki Khana, shaded blue on the plaint map, and the land shaded red and yellow was appurtenant thereto; that he had been the owner in possession thereof for the last 27 or 28 years; that the defendants had no concern with the land but they constructed a wall AB adjacent to the plaintiff's Chakki Khanna which obstructed the passage from the Chakki Khanna to the house shown by the letter Z at the back of the Chakki Khanna which passage was in existence for more than 20 years and was being used as such by the plaintiff continuously as of right and without any obstruction; that the defendants had encroached upon a part of land appurtenant to the plaintiff's Chakki Khanna the area of which was shaded red and had started digging foundations and making construction which were sought to be demolished.

(2.) THE defendants pleaded that the Chakki Khanna was constructed one Mast Ram 27 or 28 years ago, that the business failed and the Chikki Khanna property reverted to the zamindar; that the Chikki Khanna property was in the shape of a Khandhar (which) along with the other land was taken by the first defendant from the zamindar in the year 1948; that at any rate the land in question had never been the sehan of the Chikki Khanna and the plaintiff had no right of easement by way of passage as alleged. It was further pleaded that the land in dispute lay in plot no. 501 of which the first defendant was the bhumidhar and as such the suit was barred by S.49 of the U.P. Consolidation of Holdings Act. Plea of ownership by adverse possession was also raised.

(3.) THE lower appellate court has not formulated the points arising for its determination but has held that the plaintiff has failed to established his ownership with regard to the land in suit and has also failed to show that it is a sehan and that, therefore, the plaintiff is not entitled to any relief.