KRISHNA KUMAR SINGH Vs. PADUM SINGH

JUDGEMENT

(1.) This is a plaintiffs' second appeal from the concurrent decision of the Courts below dismissing their suit for a mandatory injunction.

(2.) The facts found as proved in this case are as follows. Village Amahra comprises a number of estates including Tauzi NOS. 2731 and 2758. The plaintiffs are the proprietors of Tauzi No. 2758, and the first party defendants 1 to 4 are the proprietors of Tauzi No. 2731. It appears that at the time of the partition of the village into several estates certain lands including homestead lauds were left joint amongst the proprietors of the different estates carved out of the parent estate. Khewat No. 46 is in respect of such joint lands. It comprises a number of plots including plot No. 3419, which is the plot in dispute in this case. This plot is included in Khata No. 1202 whish is shamilat of all the maliks. The plaintiffs alleged, as found by the Courts below, that Plot No. 3419 was the joint property of all the proprietors of the different estates thus carved out of the parent estate. The defendants contended that the plot in question belonged exclusively to the proprietors of Tauzi No. 2731, But that has been found against them. The plaintiffs alleged that the first party defendants, now respondents, shortly before the institution of the suit started a structure of a permanent character, and that, in spite of their protest, the defendants continued their building operations which, the plaintiffs apprehended, would deprive them of the right of getting the plot allotted to their estate in the event of a partition of the joint lands. The ground of their preferential claim to this plot was that it was near their residential house. At the trial the plaintiffs attempted to prove that the plot in question was surrounded on three sides by their lands, but that case has failed. The finding of the Courts below is that this plot had been in possession of the contesting defendants first party even since before the preparation of the record of rights some thirty years before the commencement of the suit, and though the defendant's case that their structure was mush older than what the plaintiffs alleged had not been accepted by the Courts, the finding is that the structure had been practically completed except for the roof which was being made at the time the Commissioner appointed by the Court visited the locality. The plaintiffs prayed for the demolition of the structure on the plot so that it might be restored to the condition in which it was before the structures were made. In the record of rights this plot is shewn as gairmazrua malik but in possession of the contesting defendants. A large number of persons were impleaded as the defendants second party on the ground that they were the other co-sharer proprietors of the different tauzis, and, as such, interested in the result of the suit. Some of those defendants second party died during the pendency of the suit, and one of the questions mooted in the Courts below was whether the suit as a whole abated on account of those deaths.

(3.) The defendants first party, who are the contesting defendants, raised a large number of issues most of which have been decided against them by the Courts below, and no more arise for decision in this Court. The defence, which has succeeded in both the Courts below, is that the structure was substantially completed before the commencement of the suit, and that the building was under construction for several months without any protest by the plaintiffs. Some of the defendants second party supported the plaintiffs' claim whereas others by their written statement lent their support to the contesting defendants.