Tarun Agarwala, J. - (1.) -The plaintiff filed a suit for a permanent injunction praying that the defendant be directed to remove the wall and other constructions raised during the pendency of the suit and also praying for the possession of the land. The plaintiff alleged that the disputed piece of land was being used by the plaintiff as a sehan for the last 60 years and that the defendants had no concern with the said land. It was alleged that in June, 1974, the defendant No. 1 constructed the wall and during the pendency of the suit he had illegally made some constructions on the said land.
(2.) THE defendant in his written statement contended that he was in possession of the disputed property for the last 100 years and had also purchased the same vide sale deed dated 20.1.1981. THE defendant alleged that the plaintiff was never in possession of the land in question. The trial court after framing the issues, decreed the suit of the plaintiff holding that the evidence led by the plaintiff was more reliable and that the plaintiff had proved that he had been using the land in question for tethering cows and for other household purposes. The trial court further held that the land in question was appurtenant to the plaintiff's house and that the defendant's house was separated by a lane. On the basis of the evidence led by the parties, the trial court found that the plaintiff was the owner of the land in question. The trial court further found that the defendant could not prove that he was in possession of the land for the last 100 years or from before the date of the vesting under the U.P.Z.A. and L.R. Act. The trial court further held that the sale deed dated 20.1.1981 was void inasmuch as the seller had no right to sell the property in favour of the defendant. The trial court also found that the defendant had illegally raised the construction and had illegally taken possession of the land in question. The trial court accordingly decreed the suit and directed the defendant to remove the construction and to hand over the possession of the land in question to the plaintiff. Aggrieved by the decree of the trial court, the defendant preferred an appeal. The appellate court allowed the appeal and dismissed the suit of the plaintiff. The appellate court held that the description of the land of the property was not properly given and that the disputed land in question was not the sehan of the plaintiff and that the plaintiff had failed to prove his ownership.
(3.) THE plaintiff has now preferred the present second appeal before this Court. At the time of the admission of the appeal, the following substantial questions of law was formulated, namely : (1) Whether the lower appellate court was justified in allowing the appeal without discussing any evidence on record regarding merits and whether such a judgment can be sustained? (2) Whether the lower appellate court was justified in allowing the appeal and deciding the whole controversy on the basis of the inspection report? (3) Whether the judgment of the lower appellate court is in accordance with Order XLI, Rule 31, C.P.C.? Heard Sri B. N. Agarwal, the learned counsel for the plaintiff-appellant and Sri Alok Kumar Yadav, the learned counsel for the defendant-opposite party.;