S.S. Chuahan, J. - (1.) THIS appeal has been filed challenging the judgment and decree dated 19.10.1978 passed by the first appellate court decreeing the suit.
(2.) THE plaintiff filed a suit for declaration that he be declared the owner of the land described at the foot of the plaint. The facts as stated in the plaint, were that the plaintiff is the owner of the land indicated in the map of the plaint and the disputed land is a part of the land marked by number 77 in the map of the first settlement. A written statement was filed and the evidence was led by the parties and after appreciating the evidence, the trial court dismissed the suit vide judgment and order dated 21.11.1977. Thereafter, plaintiff preferred an appeal and the appellate court vide judgment and decree dated 19.10.1978 allowed the appeal and directed that the plaintiff shall be put in possession of the property in suit within one month from today failing which the same shall be got done through the process of the court. Hence this appeal. Learned counsel for the appellants has raised substantial question of law in respect of the identity of the land and has submitted that neither any issue in regard to identity of the land has been framed nor the identity of the land was determined. Plot No. 230 is the property of the appellants, which is adjoining to plot no. 229 which is the property of the ancestors of the plaintiff -respondent, but the trial court assuming that plot no. 77 situated besides plot no. 230 proceeded to dismiss the suit, whereas plot no. 77 situate at some distance and at least not adjoining to plot no. 230.
(3.) COUNSEL for the respondents, on the other hand, has submitted that the land in suit in accordance with the first settlement was abadi and a portion of plot no. 77 Minzumla. He has also submitted that map of the first settlement of village Bangermau was torn and a copy of the same is not available in the record nor a copy of the same could be issued to the respondents, therefore, it was not possible for them to file the copy of the first settlement of khasra and map. He has further submitted that copy of the khasra and map of the first settlement of village Bangermau is available in the record of Original Suit No. 123 of 1971 Sheo Nath Ram vs. Sheo Shanker Ram and Original Suit No. 1750 of 1971 Hafizul Rahman vs. Town Area Bangermau pending in the court of Munsif, North, Unnao and it was the duty of the plaintiff -respondent to have got summoned the said map from the said court or could have obtained the certified copy of the same and placed it on record and proved the same. Since that has not been done, the claim of the plaintiff -respondent has wrongly been decreed by the appellate court.;