- (1.) UMESHWAR Pandey, J. Heard learned Counsel for the appellant.
(2.) THIS appeal challenges the judg ment and decree of the lower appellate Court dated 17-8-2006 whereby the judgment of the trial Court decreeing the appellant plaintiff's suit has been set aside and the appeal had been allowed. The appellant filed a suit for per manent injunction praying to declare the sale-deed dated 4-1-2001 executed by the defendant No. 2 in favour of the defendant No. 1 as null and void and to restrain the defendant No. 1 from caus ing any interference in plaintiff's pos session over the disputed land. During the pendency of the suit another relief of mandatory injunction praying for demolition of construction raised in the land by the defendant No. 1 has been added. The plaintiff appellant claims himself the owner of the property ABCD shown in the plaint over which he used to have his old house, which had be come dilapidated. Initially it was alleged to be an open land after the plaintiff's house had fallen down. Later on by amending the plaint, plaintiff added another new para-6-A in the plaint stat ing that the defendant No. 1 had illegal ly in collusion with the local police raised construction of a room in the dis puted land entitling the plaintiff for relief of its demolition. The suit was contested and the defendant No. 1 stated that he got the land in question transferred by the defendant No. 2 through impugned sale-deed. The ownership of the plaintiff is denied and it was further claimed that he obtained possession of the property from the defendant No. 2 on execution of the aforesaid sale-deed. It was further pleaded that he had every right to raise construction over the disputed land. The defendant No. 2 also filed his writ ten statement stating certain otherwise facts and pleading inter-alia that the sale-deed in question was got executed from him by the defendant No. 1 keep ing him in dark regarding transfer of the said land. In fact, he had agreed to transfer his property indicated by EFGH in the plaint map. He was not owner of the disputed property ABCD. On the pleadings of the parties, the trial Court framed as many as eight issues and recorded its finding holding that the sale-deed in question was got executed by the defendant No. 1 from the defendant No. 2 under mistaken im pression and that the property in ques tion is a property belonging to the plain tiff. The suit was thus, decreed and both the reliefs claimed in the plaint were granted.
(3.) THE lower appellate Court after hearing both the parties was of the view that since the appellant plaintiff had agreed for relief of demolition of certain construction alleged to have been raised in the disputed land by the defendant, he has not indicated its ex tent in the plaint map nor he has got any scale map of the property prepared for the said purpose, which could be said to be a guideline for granting the decree of demolition. THE lower appellate Court also did not find it proper to grant the declaratory relief in respect of disputed sale-deed. Accordingly, the appeal was allowed and the judgment and decree passed by the trial Court has been set aside by the impugned judgment. Learned Counsel for the appel lant while placing his submissions has emphasized that since the defendant No. 2, who is said to be transferor of the disputed land in favour of the defendant No. 1, himself disclaims his ownership over the said property and says that the property was got transferred under mis taken impression by the defendant No. 1, the suit in all fairness should have been decreed by the lower appellate Court itself. The property is owned by the plaintiff and since the defendant No. 2 had no right to transfer the property, no title would accrue in favour of the defendant No. 2 by virtue of the im pugned sale-deed. It is further sub mitted that since no additional written statement has been filed from the side of the defendant No. 1 after the relief of demolition was added in the plaint, it should be taken as admission of the said defendant respondent and there was absolutely no legal hitch in granting the same by the Court below.;