Kamal Kishore, J. - (1.) THIS is the second civil appeal against the judgment and order dated 30.11.1989 passed by the then learned Vth Additional District Judge, Pratapgarh, setting aside the judgment and decree passed by the then learned VIIIth Additional Munsif in Regular Suit No. 493 of 1981 which was a suit for permanent injunction. The following questions of law have been formulated: 1. Whether the judgment and order of the learned 1st Appellate Court is perverse and manifestly illegal due to non -consideration of material evidence on record?
(2.) WHETHER the learned 1st Appellate Court had committed substantial illegality by not considering the statement of defendant, Bhagwati Din recorded under Order X,R.3 of CPC? 2. Whether the learned 1st Appellate Court had committed substantial illegality by making out a 3rd case and not accepting the pleading of any party? I have heard learned counsel for the parties and have gone through the record. It has been argued by the learned counsel for the plaintiffs -appellants that the findings recorded by the First Appellate Court is perverse and the learned First Appellate Court has committed substantial illegality in not considering the statement of Bhagwan Din recorded under Order X,R.3 CPC. I find that there is substance in this argument of the learned counsel for the plaintiffs -appellants. The plaintiffs -appellants has filed the extract of Khatauni for the year 1359 -F and other extract of revenue records which show that the plaintiffs were tillers etc. of the soil and were resident of village since the time of Zamindari Abolition and the contention of the defendants respondents that they had settled in the village about 4 or 5 years ago only after coming Allahabad to the contrary is not tenable.
(3.) THE report and map prepared by the Commissioner also belie the contention of the defendants respondent that there is no abadi of the plaintiffs appellants toward the North of the well shown in the commissioner's map, This fact find further support from the statement of the defendant Bhagwan Din recorded in Trial Court in which it has not been denied that the house of the plaintiffs -appellants is situated towards the South of the land in dispute and that the main door of the plaintiffs -appellants opens towards North. Hence, I agree with the findings recorded by the learned Trial Court to the effect that the land is situated toward the North of the house of the plaintiffs -appellant. The learned Lower Appellate Court has erred in over -looking this fact. The report and map prepared by the Commissioner finds further support from the testimony of DW 2, in which he has admitted that abadi and house of the plaintiffs -appellants situated towards the West of the land in dispute and the house of Ramdev opens towards the North i.e. towards the land in suit.;