DEOKI NANDAN, J. - (1.) THIS is a plaintiffs' second appeal in a suit for demolition of certain constructions and for an injunction restraining the defendants from raising any construction, on the land in suit, and for possession thereon.
(2.) THE land is situate within the municipal Hmits of the town of Maunath Bhanjam in the district of Azamgarh. The plaintiffs are the Zamindars of village Sarahu to which the land appertains and are in that sense the owners of the land. Although there was some dispute, the land in suit has been found to form part of plot No. 296, and has an area of 310 Karis. There are three sets of defendants, namely the first set comprising of defendants Nos. 1 to 4, second set comprising of defendant No. 5 and the third set of defendants Nos. 6 and 7. The portions of the land with which each of the three sets of the defendants are concerned, are different and the immediate cause of action pleaded against them is also not the same. The plea of multi -fariousness, that was raised by issue No. 3, not having been pressed in the trial court, nothing more need be said about it. Originally, one Smt. Mahmooda Bibi was the first defendant, Smt. Satn -rajia the second defendant and Chander Ram the sixth defendant -respondent was the third defendant in the suit. The plaint was amended more than once and according to the plaintiffs' case, as finally set out after the amendments of the plaint, Atwaroo, the first defendant, Ram Chander and Harihar had in league with each other and wrongfully, on their own, constructed a house and a Madhai on the western part of the land in dispute some nine years ago without the knowledge and permission of the plaintiff. Harihar had died. Samrajia was his heir. She had also died and Kishun Dei defendant No. 5 was her heir. Defendants Nos. 8 to 12 claimed to be the transferees from Samarajia, and all the defendants together were interfering with the plaintiffs' possession and wrongfully claimed title to the constructions and refused to demolish or remove them. Defendantg Nos. 2 and 3 are the brothersof Atwaroo and defendant No. 4 is theirmother. Defendant No. 7 is the wife ofdefendant No. 6. Defendants Nos. 7 to 11are the sons of defendant No. 12, of whomdefendants Nos. 10 and 11 were minors,when they were impleaded as defendants in the suit. According to theplaintiffs' story, as set out in the plaint,the land was Parti and situate quite at adistance from the plaintiff's residence.The plaintiffs happened to pass that wayonce and saw the defendants buildingupon the land, which had gone up toquite a substantial stage. On the plaintiffs' objection, the defendants requestedthem not to file a suit and that theywould come and settle the matter, butthe matter was postponed and the defendants had not removed the constructions, hence the suit. It was then alleged that the land on which the defendants Nos. 1 to 4 had constructed theirhouse, had illegally been given by themto Mahmooda Bibi. who was originallythe first defendant, but whose namewas deleted by amendment andthey represented themselves to be theowners of the land, and the house of thedefendants Nos. 1 to 4 was no longerthere, but Mahmooda Bibi was in unlawful possession of the land claimingherself to be the owner, and the plaintiffs will take proper steps against herby a separate suit, if necessary, but thepresent suit was confined to the landonly or the site of the house. It wasthen alleged that the fifth defendant hadwrongfully sold the land to the defendantNo. 12, on which construction had beenstarted by the defendants Nos. 8 to 12,who had no right to raise the constructions. Chander Ram - -defendant No. 6appeared to be a misnomer for RamChandra, whose name was mentioned inthe plaintiffs' case at the outset, anddefendant No. 7 is his wife. The causeof action for the suit was said to havearisen in December, 1960, when the construction were raised and in November,1963, the defendants made the last denial.
(3.) THE substantial plea raised in defence was that the residential houses were in existence over the land in suit for more than 40 years and having fallen down in the floods of 1955 they were made afresh and that the owners of the houses had a right to transfer them. Limitation was also pleaded as a bar to the suit apart from other technical pleas. The first issue raised by the trial court was, whether the plaintiffs are owners of the site of the constructions in dispute, and the second issue was whether the suit is barred bv limitation. The first issue so raised did not bring out the essential controversy between the parties, for the real question was, whether the plaintiffs could as Zamindars of the village or owners of the land, eject the defendants and in the process to have the constructions raised bv the original owners of the houses or their transferees, demolished and removed.;