Sibghat Ullah Khan, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS is defendants' second appeal arising out of O.S. No.8 of 1971. The suit was decreed in part on 14.08.1976 by Munsif, Basgaon Gorakhpur. Against the said decree plaintiff filed Civil Appeal No.274 of 1976. Defendants filed cross -objections in the said appeal. II Additional District Judge, Gorakhpur allowed the appeal, dismissed the cross -objections and decreed the entire suit through judgment and decree dated 01.04.1978. This second appeal has been filed by the defendants against the decree passed by the lower appellate court. This second appeal was admitted on 07.08.1978 on the following substantial question of law: The substantial question of law involved in this case is whether the judgment of the lower appellate court is vitiated by mis -reading of the pleadings particularly the plaint. Matter relates to an area of 0.06 acres (6 decimal) of Plot No.634 total area of which is slightly more than 1 acre (1.02 acre). The trial court decreed the suit in respect of half of the land in dispute i.e. 3 decimal situate towards north and dismissed the suit in respect of 3 decimal of land in dispute situate towards south. Relief claimed in the plaint was for removal of cattle troughs and pegs made/ placed in the land in dispute by the defendants and for restoration of possession and for prohibitory injunction seeking to restrain the defendants from causing any interference in plaintiffs' possession. The specific case of plaintiffs was that entire Plot No.634 was jointly owned by their father and other co -sharers and a portion of said plot containing land in dispute had fallen in the share of their father and that even though entire plot was grove, however there were no more any trees in the 6 decimal portion of the said plot, which was in dispute and plaintiffs' father and after his death plaintiffs were using the land in dispute as abadi for storing cow dung cakes, paddy stacks and firewood and for tying and feeding cattles etc. for a very long time. Defendants admitted that disputed area of 6 decimal of Plot No.634 had been converted into abadi (para -4 of the plaint and para -4 of the written statement).
(3.) LOWER appellate court has mentioned that in paragraphs 8 and 13 of the written statement defendants did not assert any claim over any part of Plot No.634.;