- (1.) SUNIL Ambwani , J. Hard Shri G. M Verma , Swnior Sdvocte assisred by Shri S. N. Shukala for the defendant - appellants, and Shri V. K. S. Chaudhary , Senior Advocate assisted by Shri R. S Maurya for the plaintiff- respopndenrs.
(2.) THIS second appeal arises out of judgment and decree dated 2. 6. 1975 by the Fourth Addl. District Judge, Deoria, which was allowed by this Court and the suit was dismissed on 7. 1. 1987. Raja Khagendra Pratap Shahi, the plaintiff-respondent filed a Civil Appeal No. 7106 of 1994 in the Supreme Court of India. By the judgment dated 31. 10. 2002 the Supreme Court allowed the Civil Appeal and sent the matter back to this Court, with the following observations : "having heard learned Counsel for the parties, we are of the opinion that in the facts and circumstances of the case, the High Court ought to have heard the appeal only after complying with the provisions of Section 100 of the C. P. C. Failure to comply with the mandatory provisions contained in Section 100 of the CPC has resulted in vitiating the judgment. For the short reason the appeal is allowed. The judgment and decree passed by the High Court in Second Appeal is set aside. The appeal is sent back for rehearing and decision afresh by the High Court. The appellant in the High Court shall suggest the substantial questions of law which in his submissions are involved in the appeal. The High Court may, on being so satisfied, frame the questions, and thereafter, proceed to hear and decide the appeal on merits keeping in view the provisions of Section 100 of CPC. The parties through their respective Counsel are directed to appear the High Court on 16. 12. 2002. Vide order dated 28. 10. 1994, this Court passed an interim direction restraining the respondents herein from raising any construction on or transferring or alienating the property in dispute. THIS order shall continue to remain in operation till the date of first hearing the High Court where-after the High Court may form its own opinion on the need and propriety of issuing any interim direction during the pendency of the appeal it. " The appellants have taken 30 grounds in assailing the judgment of the appellate Court by which the suit was dismissed. They have, however, confined his argument to the following substantial questions of law: " (1) Whether the oral evidence was admissible to explain the description of property in the compromise recorded between the parties and accepted by the Supreme Court in 1958 (Ex. 20)? (2)Whether the lower appellate Court has misinterpreted and misconstrued clause 13 of the Compromise decree dated 19th May, 1958 and has acted without jurisdiction in correcting the decree. (3)Whether the Courts below have acted illegally in not considering the admissions of the plaintiff- respondent made in his affidavit dated 6th May, 1958 filed the Supreme Court, the plaint of the suit No. 1225 of 1959, the petition of compromise filed and decree passed in that suit and the statement made in the present suit which conclusively prove that the area of the plot No. 331 owned by the plaintiff- respondent was only. 18 acre and not 9. 34 acres. (4) Whether the finding of the learned Additional District Judge that their plaintiff-respondent was the owner of 9. 34 acres area of the plot No. 331 is contrary to the specific case taken by the plaintiff- respondent in para 7 of the plaint that he owned only. 85 acre area, and the clear provisions of the U. P. Zamindari Abolition and Land Reforms Act which abolished all proprietary interest in Abadi land lying in a village. " The facts giving rise to the second appeal are that the plaintiff filed a suit for mandatory injunction for direction to defendant 1st set and 2nd set to remove constructions shown by letters 'abcd' in the plaint map. A dispute had earlier arisen in the year 1950 as to who was the heir of Tamkuhi Estate. A suit was filed, which resulted into settlement, on which a compromise decree passed in the Supreme Court in 1958 (Ex. 20 ). The plaintiff pleaded that they have derived title in respect of suit land measuring 0. 85 acres situate in Plot No. 331, in the compromise decree. The plaintiff remained owner in possession of the suit land since after the compromise decree was passed. The defendant hac1 raised constructions on a part of the suit land. The plaintiffs claimed mandatory injunction directing the defendant to remove their constructions. The plaintiffs also pleaded in the alternative that Plot No. 331 was settled with them under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act.
(3.) THE defendants pleaded that the Tamkuhi Estate remained under the charge of the Court of Wards for sometime and that they acquired a piece of land on which they raised constructions from the Court of Wards. THEy denied the title and possession of the plaintiff over the piece of land. The trial Court decreed the suit No. 1791 of 1966 for mandatory injunction and demolition from the suit land. The suit for recovery of Rs. 200 was dismissed. This judgment dated 4. 12. 1971 was challenged in Civil Appeal No. 299 of 1971. The appellate Court dismissed the appeal. The order of the lower Court was Substituted by an order that the suit of plaintiff-respondent was decreed against defendant-respondent Nos. 2 and 3 with proportionate costs. They were directed to remove the disputed constructions 'abcd' in the plaint map C/70 and also the constructions, which they had made during the pendency of the suit within two months, failing which the plaintiff-respondents were to execute the decree through the process of the Court.;