Sunil Ambwani - (1.) -Heard Shri H. O. K. Srivastava and Shri Mahesh Kumar for the appellant. No one appears for the respondents.
(2.) THIS defendant's second appeal arises out of Original suit No. 202 of 1970 for permanent injunction restraining the defendant from interfering with plaintiff's possession on plot Nos. 61 and 62/2 and to make any construction; and further to remove the bricks, kal, cattle-troughs and pegs from the land in dispute. The suit was dismissed by the trial court on 16.11.1973. The Civil Appeal No. 392 of 1973 was allowed by Civil Judge, Azamgarh on 20.10.1976. On 10.12.1976, when the second appeal was admitted the amendments in Section 100, C.P.C. were not notified. The appellate court found that the plaintiffs are owners of the disputed land. The survey map (paper No. 52A2) dated 3.2.1972 prepared by the Commissioner was confirmed. The Commissioner described the disputed land in yellow colour and found it in Shikmi plot Nos. 61 and 62/2. The house of defendant was reported to be situate towards south of the disputed land. The present house of the plaintiff was shown towards west adjoining the disputed land. There was no evidence that this Shikmi plots were allotted to Ghoora Yadav or Lachchoo or any other member of the family of Subhag Yadav. The plaintiffs were in possession over the disputed land right from 1925. There was nothing to show that plaintiff's rights were extinguished. The sale deed executed by Hari Charan in favour of defendant did not confer any title as Hari Charan was not the owner of the disputed land. The defendants were purchasers and were liable to be removed. P.W. 2 was not to be declared as hostile as he had supported the case of the plaintiff and had admitted that the defendants were in forcible possession of the disputed land. The disputed plots were allotted in partition to the plaintiff's father alone in 1925 vide 'Ext. 1'. Hari Charan as such could not sell the land to defendant. Shri H. O. K. Srivastava submits that in case of judgment of reversal the appellate court must reverse all the findings of the trial court. The appellate court should also discuss the evidence of witnesses relied upon by the trial court. He has cited judgment in Santosh Hazari v. Purshottam Tiwari, 2001 (1) AWC 824; Raghuraj v. Iddu Khan, 2006 RD 654 : 2007 (2) AWC 1277 and Madhusudan Das v. Narain Bai, AIR 1983 SC 114, to support his submissions.
(3.) THE trial court while deciding issue No. 1 as to whether the plaintiff's are the owners of the land in suit relied upon Kutumb Register (Ext. Ka A2), which shows the house number of Lachchoo as 45 and house number of Subhag as 44, and inferred that houses of these persons must be adjacent to each other. He also concluded from this document that Lachchoo and Subhag were sons of Dasai and are real brothers and that Subhag was elder to Lachchoo. THErefore, relying upon Ext. 1, which is copy of Khasra 1329F, in which Subhag was recorded as Shikmi of plot Nos. 61 and 62/2 found that Hari Charan son of Lachchoo was the owner and could sell the land to the defendant. After discussing the oral evidence on the point he found that defendants were in possession. I have gone through the judgments and the submissions of the counsel for the appellant and do not find any error in the findings recorded by the appellate court that there was no evidence that Ghoora Yadav had his house in the disputed land, which ultimately fell down and was settled with Lachchoo, the father of Hari Charan. The defendant failed to prove that the house of Ghoora Yadav existed on the disputed land or that the land was settled with Lachchoo. The confirmed Commissioner map established that the disputed land lies in Shikmi plot Nos. 61 and 62/2 towards east of the house of the plaintiffs. The land was partitioned and that the parties were bound by partition, which was supported by document 'Ext. 1'. Subhag Yadav, the father of plaintiff Tesari is shown in Ext. 1 as Shikmi of plot No. 61. Shikmi plot No. 62/2 the Sehan of Subhag Yadav was allotted to Tesari, the father of the appellant and that in that manner the appellants' ancestors acquired possession of the disputed land.;