- (1.) Heard Kr. R.C. Singh, learned Counsel for the appellant. This is a defendant's Second Appeal questioning the judgment and decree of the Trial Court whereby the Suit filed by the plaintiffs-respondents herein has been decreed and the appeal against the same filed by the defendant has been dismissed by the First Appellate Court. The suit was for injunction praying that the defendant-appellant herein be restrained from interfering with the possession of the plaintiffs over the land as earmarked in the Plaint, which was being claimed as a "Sahan" adjoining land of the house of the plaintiffs. Learned Counsel submits that the following substantial questions of law have arisen for consideration in this Second Appeal; namely:-- (i) Whether the documentary evidence filed by the defendant was ignored and the Suit could have been decreed only on the basis of the oral evidence adduced by the plaintiff. (ii) Whether it was necessary for the defendant to have produced either the vendor or his son in the witness-box for proving the alleged sale of the disputed property from the original vendor Chheda Nai; and (iii) Whether the Court below was justified in not treating the disputed land to be the land appurtenant for the purpose of Sehan in favour of plaintiff under section 9 of the U.P. Zamindari Abolition and Land Reforms Act and for that purpose the Court below was justified in pressing into service the report of the Commissioner to establish possession.
(2.) The Trial Court framed 7 issues and thereafter proceeded to record a finding on the issue of possession and held that the sale-deed set up by the defendant could not be proved, nor the possession on the basis of the sale-deed was established as a material witness relating to the execution of the said document was not brought to the witness-box. The Trial Court accordingly decreed the Suit. Not only this, the Trial Court also relied on the cross-examination of the defendant witnesses particularly DW-2 and DW-4 and also indicated that the defendant - Jangi Singh himself indicated that he was blind for the past 10 - 20 years. It was also brought on record that Chheda Lal had already left his village for the past more than 20 years and finding contradictions in the statement of the defendant-witnesses came to be conclusion that the defendant has not been able to establish their assertion.
(3.) The Trial Court also delved into the extract of the Khasra Abadi and has recorded a finding that even though the name of Chheda Lal Nai was mentioned against House Nos. 359 and 360, but there were contradictions in the statements of the defence witnesses and he was not found to be the owner in possession of the House and Sahan keeping in view of the provisions of section 9 of the U.P. Zamindari Abolition and Land Reforms Act. It was, therefore, found that Jangi Singh was neither the owner nor was in possession over the land in dispute.;