ANJUMAN ISLAMIA OF BAREILLY Vs. RADHEY LAL

JUDGEMENT

(1.) This second appeal has been filed by the defendants, The Anjuman Islamia of Bareilly, against the decree in, first appeal No. 146 of 1931 of the learned District Judge in Bareilly in which he allowed part of the appeal of the plaintiff, one Pt. Radhe Lal. The suit of the plaintiff asked for a declaration that the plaintiff was owner of a staircase along with its walls and that the staircase had no concern, with the mosque and that the defendants be absolutely restrained from passing to the mosque through the staircase. This relief was granted by the lower Court and also the third relief that the defendants should roof the staircase of the plaintiff. Some further question has been raised in this appeal in regard to the decree of the lower Court about electric fittings and costs of First Appeal No. 145 of the defendants in, the Court below but no second appeal has been taken against that decree and there-fore we cannot deal with that matter as its is not before us.

(2.) The history of this staircase is found by the Courts below to be as follows: The Munsif finds that in 1859 the Government added a second storey to a shop which stands at a cross road in the city of Bareilly and Government also constructed by the side of the shop a staircase for access to the upper storey. On 10 November 1865 this shop was sold and Ram Lal, the father of the plaintiff, purchased the shop with the staircase and the upper storey. This shop is still held by the plaintiff. The documents showing this purchase include a dakhalnama and the beundaries are given in papers 23-0 and 22.C. In 1866 one Sri Ram had a simple money decree against one Mohibullah Khan and he attached sis shops and a staircase to the north of the shops and these shops were by the side of Ram Lal's shop. Ram Lal made an objection to the attachment of the staircase claiming that it was his staircase purchased from Government. The execution Court ordered that this fact should be notified at the time of the sale. The shops were put up to sales and purchased by one Dhuma Mai in 1866. Ram Lal then filed a regular suit against Sri Ram, the decree-holder, and Dhuma Mal auction purchaser for a declaration of his title to the staircase with the walls facing towards the east. The Munsif decreed this suit on 12 August 1867. An appeal was made to the District Judge. Mr. Vansittart. His judgment is not on the present record but apparently it was sent for by the lower Court and extracts are contained in the judgment of the Munsif and of the District Judge. It is a pity that learned Counsel for the appellant did not send for this record for the purpose of this appeal as the judgment seems to have been somewhat peculiar. The learned District Judge states: However it is clearly stated in this paper (the judgment of Mr. Vansittart) that, now appellant (Dhuma Mai) pleads that he does not claim the staircase but the right of way.

(3.) It appears to us that the lower Court is correct in holding that in appeal Dhuma Mal abandoned his claim of ownership to the staircase. It is clear that he had no case on this point because there was the auction Hale certificate in favour of Ram Lal as recently as 1865. For the appellant it was argued that the Court below has lower down stated: I find also that Dhuma Mai at first admitted that he had no claim to the staircase but he afterwards withdrew from this position and pleaded that lie had made a msitake.