Bisheshwar Dayal Agarwal, J. - (1.) THIS is a plaintiffs' appeal. The case of the plaintiffs briefly is that the house shown by letters ABCD in the sketch map appended to the plaint belongs to them. It is situate in village Ashrafpur, District Azamgarh. The house opens to the west. There is a window to the south. The land shown by letters ABCOIDITEFGH is claimed by the plaintiffs as their Sehan. It is situate to the west of their house and partly to the south. On the Sehan the plaintiffs claim to have three mango trees and three neem trees. There is also a chappar for nearly 12 years prior to the suit and a hand -pipe. They also have thereon a Bhatta for preparing Gur and at the point M they have had their rubbish besides Kholhar and cow -dung -cake etc, in the western part. The house of the defendants is shown by letters Ka -Kha -Ga -Gha. It opens to the north. They have had no concern with the Sehan land of the plaintiff. On of about May 3, 1968, the defendants commenced digging foundation for an Osara in part of the plaintiffs' Sehan land whereby they encroached the portion depicted by letters AHIJ without any authority for the same The relief claimed is perpetual injunction besides a direction to the defendants to remove the said encroachment perpetual injunction is claimed also in respect of the rest of the land forming part of the plaintiffs' Sehan.
(2.) IN defence, the defendants appended a sketch map to the written statement and asserted that the portion to the north of the line drawn as Ka -Kha in that sketch map belongs to them, while the plaintiffs have their user on the portion to the south of Ka -Kha. The line Ka -Kha has been drawn by them to the west of the southern end of the plaintiffs' house. It was urged that the foundation dug by them is at the place where the building earlier existed and that to the west the plaintiffs have only a window which was opened despite protest from the side of the defendants. It was denied that the plaintiffs' have had their Kulhar and the plea of limitation was also raised. The contention further is that the land in dispute is to be deemed settled with them under Section 9 of U.P. Act 1 of 1951 and not with the plaintiff. Upon consideration the oral evidence placed on record and the relevant topography of the area, the trial Court observed that the probabilities strongly are that the land in dispute is held by the plaintiffs as their Sehan and that they have been in possession as such. The construction impugned was raised by the defendants without authority encroaching on a portion of the disputed land and hence the same was liable to be demolished. The learned Munsif drew a line E1 D1 to the west of the southern extremity of the defendants house in the commissioner's map 45A forming part of the decree and it was directed that the defendants shall remove the construction lying to the south of D1 E1. In appeal, filed by the defendants against the judgment and decree of the trial Court dated April 13, 1972, it was affirmed that the defendants did not have title over the disputed land. It was also found that the Osara in question had been raised 3 -4, years prior to the suit and that the defendants' bonus opens to the north where they have had their sehan land. The disputed land has not been part of the sehan of the defendants. In relation to the plaintiffs, it was found that the house towards the east was raised about 12 years prior to the suit and the title under Section 9 of the U.P. Act I of 1951 was not made out. The user of the plaintiffs over the disputed land was held to be recent origin. On these findings, the appeal was allowed and the judgment and decree of the trial Court set aside. The suit being thus dismissed on January 27, 1975, the plaintiff's preferred this appeal.
(3.) BEFORE proceeding to discuss the merits of the controversy raised in this appeal, it may be pointed out that the land in dispute is denoted in the sketch map appended to the plaint by a letters ABCCIDITEFGH. This lies to the west of the plaintiffs' house and partly towards the south. The encroachment alleged is on a small portion show by letters AHIJ in the form of an Osara raised on part of the abovementioned Sehan. In the sketch map appended to the written statement there is a line drawn at Ka -Kha to the west of the southern end of the plaintiffs' house and the claim set up is that which lies to the north of Ka -Kha belongs to the defendants. The learned Munsif, as observed above, drew the line D1 E1 to the west of the southern end of the defendants' house and he came to the finding that the line to the north thereof is held by the defendants. The dispute existing is with respect to the land lying to the south of D1 E1 upto the minimum of the southern end the plaintiffs' house. This indeed constitutes the land in controversy in the present case.;