- (1.) THIS second appeal has been filed by the plaintiff-appellants. The trial court decreed the suit against all the defendants. The lower appellate court, however, allowed the appeal filed by some of the defendants and modified the decree. The suit remained decreed against some of the defendants but was dismissed against the other defendants. Feeling aggrieved, the plaintiffs have now come up in the instant second appeal and contention is that the decree passed by the lower appellate court should be set aside and that of the trial court be restored.
(2.) THE brief facts are these:- The plaintiffs alleged that in between the two lines shown by letters AB and MN in the site plan annexed to the plaint and to the north of K L and A G there had always been an open Sehan which was used by them and other residents of the Mohalla as a common Sehan for holding Panchayats, for the stay of the Barats and for feeding marriage parties and for various other purposes. It was further alleged that the defendants No. 8 Budh Sen had his house in the locality shown at figure X in the site plan. The houses of Ram Nath Shukla and Budha Nai were situated at the places shown by letters Z and Y in the above site plan. It was alleged that Smt Roop Rani, the defendant No. 1, who was the wife of Budh Sens son Natthi Lal, had, without right, title or interest, made constructions on the portion of the common Sehan shown by letters A E F G. It was alleged that defendants Nos. 6 and 7 Lekh Raj and Smt. Chandrawati had also constructed a Kachcha Chabutra with a Pucca embankment at the place D H I J in the Central portion of the common Sehan. The other defendants Nos. 2, 3 and 4, Ghafoor, Munshi and Babu Khan, also illegally constructed a Kachcha wall at the place C F and thus included B C F E, the portion of the common Sehan inside their own house. It was alleged that the above unauthorised constructions had been made by the aforesaid defendants at the instigation of defendant No. 8 Budh Sen; hence he had also been impleaded in the suit. It was further alleged that defendant No. 5 Bal Kishan had obtained a sale deed from defendants Nos. 6 and 7, Lekh Raj and Smt. Chandrawati with respect to the Chabutra D H I J and hence Bal Kishan also had been impleaded in the suit. It was suggested that on account of the above unauthorised constructions, there had been a great obstruction in the common Sehan and passage owing to which the plaintiffs-appellants were driven to file the suit in question in a representative capacity under O. 1, R. 8. C.P.C. A decree for possession was claimed over the pieces of land marked by letters A E F G, B C F E and D H I J after removal of the unauthorised constructions made by the defendants. It will be seen that the eight defendants impleaded in the suit fell into three sets. The first set consisted of Smt. Roop Rani, the defendant No. 1, Bal Kishan, the defendant No. 5 and Budh Sen, defendant No. 8. They filed one joint written statement. The second set consisted of the defendants Nos. 2, 3 and 4, Ghafoor, Munshi and Babu Khan respectively. The third set consisted of the defendants Nos. 6 and 7, namely, Lekh Raj and Smt. Chandrawati. The first set mainly contested the suit. The second set supported the plaint allegations and the third set did not file any written statement and the suit proceeded ex parte against them. The first set denied that the disputed land had been a part of any common Sehan. It was pleaded that Budh Sen, the defendant No. 8, was owner of his house No. 4741 and of the land lying in front of it towards its East. The suit was alleged to have been instigated by one Ram Nath who was the brother of Sidh Nath, plaintiff No. 1. Ram Nath was alleged to have lost in several litigations with Budh Sen and hence he bore animosity against Budh Sen and his family. The judgments of the earlier litigations were also said to be res judicata in the instant suit. The plea of estoppel was also taken.
(3.) THE trial court framed the necessary issues and tried the suit. THE plaintiffs' case was accepted and it was held that the defendants had made the alleged encroachments by raising constructions which were liable to be demolished. THE suit was held to be maintainable and not barred by estoppel or res judicata. THE trial court, therefore, decreed the suit against the defendants. Feeling aggrieved, the first set of the defendants, namely, Smt. Roop Rani, Bal Kishan and Budh Sen, filed an appeal in the lower appellate court and the same was allowed. The lower appellate court held that the plaintiffs had failed to prove that the disputed pieces of land formed part of any common Sehan as alleged by them. It was further held that it was not proved that the Kotha which was sold by Ghafoor and others in favour of the defendant Smt. Roop Rani on 13th October, 1959 by sale deed Ext. A-8 lay 10 or 11 feet behind the disputed room A E F G. It was found that the disputed room A E F G was constructed at the place where originally stood the Kotha of Ghafoor and others which they sold in favour of Smt. Roop Rani. Thus the disputed room A E F G was not an encroachment as alleged by the plaintiffs. So far as the disputed Chabutra D H I J was concerned, it was held that it was never purchased by Bal Kishan, the defendant No. 5, from defendants 6 and 7, Lekh Raj and Smt. Chandrawati, as the said vendors themselves had never acquired title to the same from the original owner Paltoo who had executed a sale deed on 29th March, 1946 in their favour. On a construction of the said document, it was held that the same did not cover the disputed chabutra and hence the purchasers Lekh Raj and Smt. Chandrawati did not acquire any title to the same and they themselves could not pass any in favour of Bal Kishan by the sale deed Ext. A-7 which they executed in favour of the latter on 27th February, 1962. Despite this finding, however, it was held that as the plaintiffs had failed to prove that the lands in dispute formed part of any common Sehan, therefore, they had no right to take exception to the unauthorised act of Bal Kishan in constructing the disputed Chabutra by encroaching on the land beneath the same. In the result, the lower appellate court held that the plaintiffs were not entitled to get back possession over the pieces of land marked as A E F G and D H I J. They were held entitled to get relief against the defendants second set, namely, Ghafoor, Munshi and Babu Khan who had admitted the plaintiffs' claim in respect of portion of land marked B C F E.;