- (1.) TARUN Agarwala, J. This is plaintiffs' second appeal having lost from both the courts below. The plaintiffs filed a suit for permanent injunction restraining the defendant Nos. 17 to 19 from interfering in their possession over the land in question. The plaintiffs alleged that in Plot No. 837, there existed their ancestral house and that plot No. 248 was an open piece of land, which was their sehan. The plaintiffs alleged that the land initially belonged to the ancestors of defendant Nos. 1 to 16 and pursuant to a partition amongst the ancestors of Nos. 1 to 16, plot No. 248 fell into the share of the father of defendant No. 1, namely, Ram Jatan, who came into possession and after the death-of Ram Jatan, defendant No. 1 came into possession and executed a surrender deed dated 6. 2. 1967 in favour of the plaintiffs and since then, the plaintiffs are in possession. The plaintiffs also contended in the alternative, that even, otherwise, prior to the surrender deed, they were in possession and had planted the trees and that the land was now abadi and after the enforcement of Act No. 1 of 1951, the plaintiffs are the owners and are in possession. The plaintiffs further contended that they were in possession for several years and consequently, had perfected their rights also by adverse means.
(2.) THE defendant Nos. 17 to 19 resisted the suit and contended that the defendant Nos. 1 to 16 had 1/12th share in the land which was sold to them vide sale deed dated 12. 1. 1976 and 6. 4. 1967 and since then, they are in possession. THE defendants further submitted that the land was not an abadi land and that it was grove. THE defendants further contended that the plaintiffs had never planted the trees and that the defendants Nos. 1 to 16 had planted the trees. THE defendants further submitted that the plaintiffs were not the owners nor the defendant No. 1 had any right to execute a surrender deed. The trial court, on the basis of the pleadings and evidence brought on the record dismissed the suit holding that the plaintiffs were not the owners of the land in suit and that the defendant No. 1 was not the owner of the entire land and that he had only 1/12 share in the plot in suit. The trial court held that the defendant No. 1, at best, could issue a surrender deed to the extent of his 1/12th share and that the surrender deed for the remaining share was invalid. The trial court further found that the plaintiffs could not prove that they had planted the trees and further held that the land was not an abadi land but was a grove. Aggrieved, the plaintiffs filed an appeal and the appellate court, after reappraising the evidence, again dismissed the suit and affirmed the judgment of the trial court. The appellate court found that the defendant Nos. 1 to 16 were recorded as bhumidhars in the khasras and khataunt and that the names of defendant Nos. 17 to 19 was mutated in the revenue records pursuant to the sale deed executed in their favour. The appellate court also found that the defendant No. 1 was not the exclusive owner of the plot and was only a co-owner. The appellate court further found that if the plaintiffs were already in possession from the time of their ancestors in that event, there was no justification for the plaintiffs to obtain a surrender deed from defendant No. 1. The plaintiffs, being aggrieved, have now filed the present second appeal.
(3.) THE learned counsel for the appellant submitted that no issue was framed on the point of possession and therefore, the courts below committed an error in dismissing the suit and that a survey commission ought to have been issued not only to locate and identify the land but also to give a finding on the point of possession. THE learned counsel further submitted that once it was found by the Court below that the plaintiffs were the owners of 1/12th share of the land in question, the courts below should have granted the injunction and the suit should have been decreed at least to the extent of 1/12th share or alternatively, the matter should have been referred under Section 331a of U. P. Zamindari Abolition and Land Reforms Act. No doubt, no issue on the point of possession was framed by the trial court. Since, the evidence was led on this aspect of the matter, the appellate court framed an issue and decided the question of possession itself. The lower appellate court found that the plaintiffs were not in exclusive possession of the land in question. In my opinion, this finding is based on the appreciation of the evidence on record which requires no interference. The lower appellate court has given categorical reasons in coming to a conclusion that the plaintiffs were never in exclusive possession of the plot in question. The mere fact that an issue was not framed by the trial court, would not vitiate the judgment of the trial court as well as of the lower appellate court. The lower appellate court was justified in framing the issue and deciding the matter, especially, when evidence on this aspect had been led by the parties. Further, once a finding has been given that the land was a grove and was not an abadi, no suit for injunction could have been filed in a civil court and the court below should have relegated the plaintiffs to seek an appropriate relief before the revenue court. Further, in the opinion of the Court, no suit for injunction could have been filed against a co-owner/a co-sharer in joint possession without seeking a relief for partition. In my opinion, a joint co-sharer cannot claim any right or possession over a specified portion of the property, which is held jointly without filing a suit for partition. Consequently, even though, the Court may have given a finding that the plaintiffs are the owners of 1/12th share of the land in question, the suit for injunction could not be filed against a co-sharer, since, the land was not partitioned by metes and bounds.;