S.K.Phaujdar, J. - (1.) THE present appeal is directed against the judgment and decree dated 30.9.85 passed by the Additional District Judge, Gyanpur (then in the district of Varanasi) in Civil Appeal No. 25 of 1984. THE first appellate court had allowed the appeal before it and had dismissed the suit of the plaintiff- respondents which was allowed and decreed by the Munsif, Bhadohi, at Gyanpur in original Suit No. 94 of 1983 on 10.9.84. Thus the plaintiffs aggrieved by the first appellate judgment, preferred this appeal.
(2.) PLAINTIFFS had filed the suit for permanent injunction against the defendants for restraining them from interfering in the possession of the plaintiffs on the suit property. The plaintiffs annexed a map with it showing a piece of land by the letters Ka, Kha, Ga and Gha. It also described this area by its boundary. This land lay to the south of the residential plot of the plaintiffs and they were in possession thereon as owners. This land was a part of plot No. 151. One Sri Rai Bahadur Singh Baghel was the owner of this plot 151. He agreed to settle this land with the plaintiffs on 30.1.1977 and had received Rs. 90 for this purpose. After his death, his widow settled this land in favour of plaintiffs on 18.12.1982 and the plaintiffs continued to be in possession thereon. They had a chabutra on it and there was a drain running towards south from the residential house of the plaintiffs through this land flowing into a ditch to the west. The plaintiffs had their cattle trough, etc. also on this land. The defendant had no manner of right title or occupation on this land but they were giving out threats for unlawfully occupying the same. This prompted the filing of the suit. The case of the defendants was that the suit property was a part of plot No. 151 and it belonged to Rai Bahadur Singh Baghel. It was stated that the plaintiffs have no concern with it nor they had ever remained in possession of it. The written statement was also appended with a map in which the disputed land was shown by the words Ta, Tha, Da, Dha. This land was adjacent to the residential house of the defendants. The original owner Rai Bahadur Singh Baghel had settled the disputed land with defendant No. 2 Bismillah as far back as on 2.12.1955 on a consideration of Rs. 300. Since then, Bismillah had been in possession thereof. He used to irrigate his field through a Nali made on this land. Bismillah had sold this land to Abdul Gaffar for Rs. 50,000 on 10.12.1982 and had delivered possession to Gaffar. Since then, the defendant Abdul Gaffar was in possession of the disputed land. Rai Bahadur Singh Baghel or his widow had no right to settle the land afresh with the plaintiffs in 1977 or 1982. It was stated that the plaintiffs Intended to buy the land from Bismillah and when they failed to do so and the sale in favour of Abdul Gaffar was made on 10.12.1982, the plaintiff came up with the false plea of settlement dated 18.12.1982. The trial court framed issues on the points of possession and title of the disputed land as also on the questions of valuation, limitation, adverse possession and relief. It was found by the trial court that the suit was properly valued. On the question of right, title and possession and the plea of adverse possession by the plaintiff, the trial court decided the issues in favour of the plaintiffs. He also found that the suit was not barred by limitation. Accordingly, he decreed the suit against defendant Nos. 1 and 2 restraining them from creating any disturbance on the suit property in the peaceful possession of the plaintiffs and defendant No. 3.
(3.) THE defendants preferred the aforesaid first appeal (C.A. 25 of 1984). THE first appellate court believed the case made out by the defendants and disbelieved the case of the plaintiffs on the ground that the original lease deed dated 18.12.82 was not produced and the executant thereof was not examined. He drew an adverse inference against the plaintiffs for not producing the best evidence which he was able to produce. THE learned first appellate court was of the view that in the year 1982, the Zamindar had no authority to settle the land, as his right was already abolished by the U. P. Urban Areas Zamindari Abolition Act, w.e.f. 26.1.76 at Bhadohi. He also discarded the alternative theory of the plaintiffs that the plaintiffs had acquired any right by adverse possession on the suit property. He was further of the view that mere tethering of cattle on the land or keeping straw, legs etc., would not amount to possession, far less adverse possession. Upon such findings, the first appellate court had allowed the appeal before it and had dismissed the suit of the plaintiffs. This appeal was preferred on several grounds but it was admitted only on one substantial question of law as framed in the memo of appeal at point B. The question was whether the first appellate court failed to consider the boundaries of the land in suit given in the Patta dated 2.12.1955 and the sale deed dated 10.12.1982. It is an undisputed fact that plot No. 151 was a big plot, a part whereof was in the possession of the plaintiffs and another part was in possession of the defendants. The plaintiffs claimed an area of 1 Biswa and 9 Dhurs. This was on the basis of exhibit 4. The deed of lease indicates the land settled as plot No. 151/6 and its area was described as 1 Biswa and 9 Dhurs. The boundary thereof was described as East : the public road, West : Ditch, North : House of the plaintiffs and South : house of Bulla and land of Bismillah. In the settlement in favour of Bismillah, the area was described as 15 Dhurs and the plot was marked as 151/3. The boundaries were shown as East : Public road, West : ditch, North ; rest of plot No. 151 and South-Bhejai. The said area and boundary were also shown in the sale deed of Bismillah in favour of Abdul Gaffar but the plot was described as 151/1.;