- (1.) R. B. Mehrotra, J. Heard learned counsel for the appellants and the learned counsel for the respondent.
(2.) THE present second appeal has been filed by the defendants against the judgment and decree passed by 2nd Additional District Judge Basti dated 28-5-1993 wherein 2nd Additional District Judge on appreciation of oral evidence and commissioner's reports, decreed the plaintiff's suit for permanent injunction and directed the defendants to remove their brick stack etc. from the land in suit within a period of two months. The first appellate court has reversed the findings of fact recorded by the trial court in favour of the defendants and against the plaintiff. The parties are residents of village Dhanghata, tappa Mahso pargana Mahuli East of district Basti. The house, Sehan, Ghari and Charni of the plaintiff situate to the east of a kharanja which lies north-south in the village. The plaintiff claims that these things are coming down his posses sion from the time of his ancestors. The plaintiff was raising construction on the old foundation to the north of his house. The defendants filed original suit No. 107 of 1976 and obtained an ad interim injunction order in their favour. The plaintiff filed his objection against the said ex parte interim injunction order was subsequently vacated. The defendants appeal against the order vacating the injunction order was also dismissed. After dismissal of the appeal, the defendants started threatening to the plaintiff to close his door 'a'. On 9-5-1976 the defendants raised a wall at point 'de' shown in the plaint site plan. The plaintiff asked the defendants to remove the said wall. The defendants having not paid any heed to his request, the plaintiff filed the suit giving rise to the present second appeal for a direction that the defendants be directed by a mandatory injunction to remove the wall constructed on the disputed land.
(3.) THE trial court on appreciation of the evidence and commissioner's reports arrived at a conclusion that in view of the fact the plaintiff has failed to prove his possession over the disputed land by any documentary evidence and in view of the statements made by PW 1 and PW 2 and map 25-Ga, the plaintiff has failed to prove that he is owner of the disputed land. Aggrieved by the aforesaid judgment of the trial court the plaintiff filed a civil appeal in the court of District Judge, Basti. The IInd Additional District Judge, Basti, vide his judgment dated 28-5-1983, has allowed the appeal. The lower appellate court itself considered the circumstances that for the disputed land the defendants themselves had already filed another suit. There the defendants attempted to get an injunction order passed against the plaintiff restraining him from making construction over the land in suit but the assempt was ultimately unsuccessful and the interim order obtained by the defendants was vacated. The defendants had stacked bricks on the disputed land and had illegally constructed the wall. In the aforesaid back ground, the lower appellate court further considered the commissioner's report and on the basis of the commissioner's report, the lower appellate court recorded a finding that the Commissioner's report clearly depicted that the wall in question lies to the north of the plaintiff's house. The Commissioner has also shown the places where the defendants stacked their bricks. It shows a Baithaka of the defendants lying to the west of the Kharanja facing towards north. Another Commissioner's report also confirmed that the defendants had stacked bricks on the disputed land. After examining the Commissioner's report, the lower appellate court examined the statements of the plaintiff's witnesses and the statements of the defendants' witnesses. On appreciation of the evidence of the parties the lower appellate Court recorded a finding of fact that the plaintiff has proved his user, possession and title over the disputed land and also recorded a finding that Paper No 25-Ga clearly shows that the defendants raised house No. 1 very recently and they have built an Ahata to the west of the said house and on the basis of the aforesaid facts, the lower appellate Court reached the conclusion that the defendants were not in use and occupation of the land lying to the east of the pavement. On the basis of actual assessment of the oral evidence and Commissioner's reports, the lower appellate court arrived at a different conclusion than arrived at by the trial court and the lower appellate court recorded finding of fact that the plaintiff has proved his lawful possession over the land in dispute and decreed the suit of the plaintiff.;