- (1.) This second appeal has been filed challenging the judgment dated 22.8.1988 and decree dated 6.9.1988 passed by the lower appellate court allowing the appeal with cost throughout arising out of the judgment and decree dated 4.5.1987 passed by the IVth Additional Munsif, Hardoi dismissing the Regular Suit No.106 of 84. The facts giving rise to the present appeal are that a suit for permanent injunction along with mandatory injunction was filed by the plaintiff alleging therein that the plaintiff was the owner of property shown in the site map by letters 'A, B, C, C1, D and D1'. The plaintiff has purchased the disputed property by a registered sale deed dated 7.3.1983 from Fakire S/o Vijayee. The defendants were not having any right in respect of the land shown by letters "K, F, G and J" and the defendants no.3 to 6 were residents of Shahjahanpur and they were not having any right to sell the land in dispute. Fakire has given the land shown by letters "E, I, G and F" to defendants no.3 to 6 for residing therein. The sale deed dated 8.7.1980 executed in favour of the defendants no.1 and 2 by defendants no.3 to 6 was illegal and without authority of law and was void. The plaintiff belongs to the family of Fakire and the defendants no.1 and 2 with bad intention were trying to take possession of the disputed land shown by letters "K, A, B, C, C1, D and D1" and they have opened a door shown by letters "M, N. O and P" from one kothari and have also started making construction of a wall on north-south side. During the pendency of the suit, the defendants have demolished the old kothari shown by letters "M, N, O and P" and have raised a new kothari. The plaintiff claimed relief that the defendants may be restrained from interfering in the disputed land and a decree of mandatory injunction be issued against them, so that they may vacate the disputed land.
(2.) Written statement was filed by the defendants no.1 and 2 denying the assertions made in the plaint and in the additional pleas and it was stated that Fakire was not the owner of the entire land shown by letters "K, F, G and J" and in fact Fakire was the owner of house situated on the northern side of land shown by letters "E, D1 and D" and to the western side of the land shown by letters "A, N, M and D" and he was residing in the said house and in respect of the rest of the land, house of the defendants no.3 to 6 was existing along with sahan and they were in possession over the said land. Since before the date of abolition of zamindari Khayali, father of the defendants no.3 to 6 was the owner of the house and the land along with sahan vested in the defendants under Section 9 of the U.P.Z.A. & L.R. Act (for short the 'Act'). The defendants no.3 to 6 executed the sale deed in favour of defendants no.1and 2 on 8.7.1980 and on the basis of the said sale deed, defendants no.1 and 2 were in possession and the Fakire was never the owner of the disputed land and after possession was delivered to the defendants, they constructed one kothari on the western side along with one room and is residing in it and on the eastern side defendant no.2 has constructed two rooms facing each other i.e. north and southern side and he put a thatch before that room and is residing in it.
(3.) On the pleadings of the parties, the trial court framed four issues and after considering the evidence led by the parties, dismissed the suit. The plaintiffs feeling aggrieved with the said judgment and decree, preferred an appeal before the appellate court and the lower appellate court after appreciating the arguments of the respective parties, allowed the appeal and found that the trial court has misconstrued and misrepresented the evidence on record, which has resulted in erroneous findings. Hence the present appeal.;