- (1.) R. K. Mahajan, J. This is a Second Appeal filed against the judgment and decree dated 17-12-1974 passed by Shri S. D. N. Sahi, II Additional District and Ses sions Judge, Deoria by virtue of which he dismissed the appeal and affirmed the decree of the lower Court. The lower Court has passed a decree to the effect of prohibitory injunction against interference in the plaintiff's possession over a piece of land and also possession in the alternative on the basis of a title i. e. by way of purchase of land. . 06 acre from Abdul Shakoor and Subrati on 15-12-1967. The trial Court believed the description given in the sale land and decreed the suit. In order to under stand the controversy brief resume of facts is given below.
(2.) IT appears that there was a litigation and suit was instituted in the year 1957. The suit was numbered as 1808 of 1957 regard ing declaration of the title between the pre vious owners and which was compromised. Under compromise 0. 23 acre of land towards the north of the said plot was given to Abdul Majeed, Abdul Shakoor and Sobrati while 0,57 acre land towards south of the plot was given to Ali Sher and others. It appears later on that Abdul Shakoor and Subrati made an application before the competent authority for bhumid-hari rights in respect of 2/3rd shares of their land which fell into their share i. e. . 23 acre. Abdul Shakoor and Sobrati sold away. 06 acre of land out of. 23 acre of land of their share in favour of the plaintiff which is sub ject matter of dispute. It is alleged by the plaintiff that since this sale he is in possession and defendant-appellant in the year 1968 tried to encroach upon the said piece of land. Consequently suit for prohibitory injunction or in the al ternative for possession was filed. The case of the defendant is that the plaintiff has no title over the piece of land, even the title to Abdul Shakoor and Sobrati was denied. It was further pleaded that the land is not identified on the spot and sub-division which has been described by the plaintiff in the plaint does not exist. They went to the extent that they have purchased a piece of land from the aforesaid plot from Shri Ali Sher. The lower Court gave a finding that the plaintiff is owner of. 06 acre of land of plot No. 1487/1 towards north of the said plot. After perusing the record of Original Suit No. 1808 of 1957 from the Record Room it also came to the conclusion that. 23 acre of land towards the north of the plot belonged to Abdul Shakoor, Sobrati and Abdul Majeed and from this. 06 acre has been sold to the plaintiff. The lower Court was also of the view that the land has been properly described by Khasra Number as well as by boundary and the identity of the land is clear on the spot by boundaries. This finding is based on evidence as well as report of the local Commissioner. Admittedly the plaintiff and defendants are co- sharers. Now the dispute is regarding the location of lands.
(3.) THE contention of Shri R. S. Misra, learned Counsel for the appellant is that the lower courts has failed in its duty to locate the land in dispute i. e. identity of the land which had been given to Abdul Shakoor, Sobrati and Abdul Majeed on the one hand and Ali Sher on the other hand on the com promise decree passed in Suit No. 1808 of 1957. THE lower Court also committed error relating to the identity of the land of sale-deed dated 15- 12-1961 executed by Abdul Shakoor and Sobrati in favour of the plain tiffs- respondents. None of the Courts tried to determine the location of. 23acre of plot No. 1487/1 which went to Abdul Shakoor, Sobarati and Abdul Majeed and. 57 acre which was left with Ali Sher and others under the decree. It has been also submitted that the lower Court should have also given a finding whether Ali Sher had been in pos session of. 04 acre of land of plot No. 1487 sold by him to the defendant-appellant. It has been further submitted that the case be remanded for the location of plots of dif-ferent-co-sharers in the ends of justice. THE case be remanded to lower Court for measuring and demarcating. 23 acres of land of plot No. 1487/1 given to Abdul Shakoor, Sobrati and Abdul Majeed and. 57 acre area given to Ali Sher and others under the decree dated 13-8-1958 and then only jus tice can be done. Learned Counsel for the appellant has also brought to my notice copies of compromise dated 14-8- 1958 and survey map of 24- 10-1968. I have allowed this application after hearing the arguments as they are public documents. I do not find any force in the submission of the learned Coun sel for the appellant on the following reasonings.;