- (1.) This second appeal arises out of judgment and decree passed by the Additional District Judge-VII, Gonda, in Regular Civil Appeal No. 36 of 1998, whereby the appeal was partly allowed and the decree passed by the learned trial court in Regular Suit No. 632 of 1992 so far as it related to the removal of construction, the suit was dismissed but in respect of the decree for permanent injunction the appeal was dismissed and the defendant/appellants were restrained from making any interference in the property in dispute.
(2.) The brief facts are that the plaintiff/ respondent filed a suit against the defendant/appellant with the allegation that they are the owners in possession on the plot in question shown by the red colour in the map attached with the plaint. The said disputed land is a part of land Gata No. 516 area 0.10 dismal. The plaintiff/respondents further alleged that they purchased the said property on 10.4.1981 by means of registered sale deed from Asharfi Lal and since the date of purchase they are in continuous and peaceful possession thereof. They further alleged that their residential house is also very near to this plot and as there was short space in their residential house, they started using land for keeping their animals. It was further alleged in the plaint that the defendant/ appellants have been continuously threatening to dispossess the plaintiff/ respondents and raise construction. It was also alleged by the plaintiff/ respondents that on 21.8.1996 the defendant/ appellants had constructed their house which is adjacent to the disputed land and have encroached upon a portion of the disputed land. With the aforesaid allegations the plaintiff/ respondents prayed for a decree of mandatory injunction directing the defendant/ appellants to remove the construction raised over the disputed plot of land and permanently restrain them from making any interference in the peaceful possession of the plaintiff/ respondents.
(3.) The defendants/ appellants contested the suit and filed their written statements. It was alleged by them that the disputed land is the Bhumidhari land of the defendant/ appellants, upon which they are in possession as owner thereof. The plaintiff/ respondents have never been in possession of the said land. It was further alleged that the disputed land is the part of the grove land of the defendant/ appellants. There were some other co-owner of the said land but all of them by means of the family settlement divided the said land and the dispute land fell into the share of the defendant/appellants. It was further alleged by the defendant/ appellants that a suit for partition under Section 176 of U.P. Z.A. & L.R. Act is pending and there was an interim order but inspite of that the plaintiff/ respondents have purchased the said property which is not binding upon the defendant/ appellants and the sale deed executed in favour of the plaintiff/ respondents was a nullity. It was further pleaded by the plaintiff/ respondents that the suit was barred by 161 A of U.P. Z.A. & L.R. Act and the judgment dated 10.1.1992 is binding upon the parties and has an effect of res-judicata. The defendant / appellants also put forward a plea that the disputed plot of land is not part of Gata No. 516 but was a part of Gata No. 513. The defendant/appellants further denied having made any construction over any part of the disputed land.;