Sunil Ambwani - (1.) -
(2.) HEARD Shri Radhey Shyam, learned counsel for appellants and Shri B. N. Asthana learned counsel for respondents. The substitution application of appellant No. 2 is delayed by 46 days. The reasons given for explaining the delay are good and sufficient. The delay condonation application and substitution application are allowed. The office shall make a note of the order in the array of parties. The second appeal was dismissed for want of prosecution on 19.8.2006. An application for recalling the order was filed on 11.9.2006.The counsel could not appear as he is stated to be ill on that date. The cause shown is sufficient. The restoration application is allowed. The appeal is restored to its original number and with the consent of parties it was heard.
(3.) THIS defendant's second appeal arises out of O.S. No. 132 of 1963 for declaration that the land 'Ka, Ya, Ha', Na is the 'Sahan' (Courtyard) of the house of the plaintiff and defendants-second set. The plaintiffs also prayed for relief of permanent injunction, and in the alternative, in case they are not found in possession, for relief of possession. The suit was decreed by the trial court on 27.9.1966 with costs. The Civil Appeal No. 253 of 1966 filed by the defendants was dismissed on 11.10.1976. The concurrent judgments are under challenge. Briefly stating the facts given in the plaint are that plot No. 329 was partitioned in the year 1935 amongst the Zamindars, in which plot No. 329/1 measuring 4 bishwa 18 biswansi was allotted to Shri Saryoo Prasad Rai ; plot No. 329/2 measuring 3 biswas 5 biswansi in the share of Shri Arvind Rakesh Rai, and plot No. 329/3 measuring 4 biswas 18 biswansi to Shri Mahadeo Rai. Mohd. Nazir the father of defendant Nos. 6 to 9 and husband of defendant No. 10 took land of plot No. 329/1 4 biswas 10 biswansi and 329/3 4 biswas 18 biswansi from Saryoo Prasad Rai and Shyam Sunder through registered 'Ejajatnama', on 4.1.1939 for constructing a house. He also took plot No. 329/2 measuring 3 biswas 5 biswansi from Shri Arvind Rakesh Rai on 5.1.1939. Mohd. Nazir constructed a 'pacca kothi' in these plots measuring 74' north-south and 38' east-west, in 1939-40. He left the land towards north as 'sahan' (courtyard) and used it for the said purpose. This land piece fell in plot No. 329/2 and 329/3 and is appurtenant to the kothi. On the abolition of Zamindari the land was settled with him under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act, 1950. The plaintiff No. 2 is the tenant of Mohd. Nazir.;