GHULAM HUSAIN Vs. GANESH LAL

JUDGEMENT

(1.) THIS is a plaintiffs appeal arising out of a suit for possession of a certain plot of land and demolition of a wall erected thereon by the defendants. The plaintiffs had also claimed damages, etc., but we are not concerned with this portion of the case in appeal. The defence was that the plot of land on which the wall in dispute stood belonged, to the defendants and a new wall had been built up in place of the old one. The Munsif found in favour of the plaintiffs and decreed the claim in part, namely, he allowed the plaintiffs possession of the land and decreed Rs. 30 as damages. On appeal the lower Appellate Court came to the conclusion that the plaintiffs had failed to prove their ownership of the land in dispute and has reversed the decree of the First Court and dismissed the suit. The plaintiffs come here in second, appeal ana their main ground is that the defendants themselves, whilst objecting to the Commissioner's report, offered to be bound by the decision which the Court arrived at on inspection of the locality and were not competent to appeal to the lower Appellate Court and reliance is placed on Shahzadi Begam v. Muhammad Ibrahtm 59 Ind. Cas. 787 : 43 A. 266 : 19 A.L.J. 14 and an unreported decision of Mr. Justice Stuart in Second Appeal No. 1213 of 1919 decided on the 23 of June, 1921, [Ram Lal V/s. Satya Ranjan Sircar]. In my opinion these cases have no bearing on the present case. In these cases there were agreements of the parties agreeing to be bound by the decision of the Trial Court on the question involved. In the present case there was no such agreement. An application was out in by the defendants but there is nothing to show that the plaintiffs had agreed to it, and neither the Court nor the parties took it seriously in this sense and later on went into the evidence. Under these circumstances the application put In by the defendants does not estop them from questioning the correctness of the decision of the Munsif. The learned Judge of the lower Appellate Court has on considering the evidence come to a finding of fact that the plaintiffs do not own the land in dispute. The suit was, therefore, rightly dismissed by him. I, therefore, dismiss this appeal with costs.