- (1.) The order which was passed on the date on which judgment was reserved, i.e. 01.11.2010 is quoted below: Sri K.D. Tripathi, learned Counsel has filed vakalatnama on behalf of Petitioner. No one hasappeared on behalf of contesting Respondents. Heard learned Counsel for the Petitioner, who has solely placed reliance upon Article 135 of theSchedule to the Limitation Act.
(2.) Respondent No. 3, Smt. Katori Devi instituted O.S. No. 629 of 1967 against Hori Lal, predecessor-in-interest of Petitioners in the Court of Munsif, City, Bareilly. The suit was decreed by Additional Civil Judge, Bareilly on 07.01.1972. Copy of the said judgment is Annexure-II to the writ petition. Findings on issue No. 5 (last para before order) and the order are quoted below: Issue No. 5:The net result is that the Plaintiff is entitled to a decree for (No. 1) removal the wall E X built by the Defendant, and for possession over the site of the old wall, (2) Rs. 200/-as consists of the original wall demolished by the Defendant, (3) perpetual injunction restraining the Defendant from interfering with the Plaintiff's possession over the same, and (4) removal of constructions etc. made by the Defendant in the disputed passage A B C D E F G A. However she is not entitled to the relief of possession over the disputed passage in view of the finding that she is not its exclusive owner, and that she has only right of passage through it unobstructed in any way. ORDER
(3.) The suit is hereby decreed for (1) removal of the wall E X built by the Defendant, and for possession over the site of the old wall, (2) Rs. 200/-as costs of the original wall demolished by the Defendant, (3) perpetual injunction restraining the Defendant from interfering with the Plaintiff's possession over the same, and (4) removal of constructions etc., made by the Defendant in disputed passage A B C D E F G A. The parties shall get proportionate costs according to their success. Against the said judgment and decree Defendant of the said suit filed Civil Appeal No. 53 of 1972, which was partly allowed on 08.08.1972 by A.D.J. Bareilly. The operative portion of the judgment is quoted below: The appeal is partly allowed with proportionate cost. The judgment and decree of the learned lower court are modified to this extent that the relief about removal of disputed constructions from over the Rasta land ABCDEFGA shall no longer stand granted to the Plaintiff. In all other respects the judgment and decree of the lower court are confirmed. The said judgment is Annexure-III to the writ petition. Thereafter, both the parties filed second appeals in this Court being Second Appeals No. 2793 & 2888, both of 1972. Both the second appeals were allowed on 30.11.1979 and it was held that appeal of the Defendant was also liable to be allowed and the Plaintiff's suit for demolition of the wall EX was to be dismissed. Last two paragraphs of the judgment dated 30.11.1979 passed in the second appeals by this Court are quoted below: In the result, both the appeals succeed. The Plaintiff's suit for demolition of the constructions FGHIJF in the passage ABCDEF is decreed. The suit of the Plaintiff for demolition of the wall EX is dismissed. It is made clear that both the parties are entitled to have support from the wall EX and maintained the said wall. Both the appeals are consequently allowed, the judgment and decree passed by the lower appellatecourt are modified as above. The parties are directed to bear their own costs.;