- (1.) R. K. Mahajan, J. This appeal against the judgment and decree of Shri J. B. Singh, Vth Additional District Judge, Al lahabad dated 10-2-1984 by virtue of which he confirmed the judgment and decree dated 20-1-1983 passed in Original Suit No. 286 of 1980. The lower court granted a decree regarding demolition of construc tion in dispute. This appeal has arisen from the following facts.
(2.) ONE Laxmi Narain Misra purchased a piece of land out of plot No. 175/2 measur ing 11 Dhur owned by one Raj Bahadur through sale-deed registered on 4-8-1975. There was already construction in an area of 4 "dhur. " Plaintiff-respondent also started new construction i. e. new house in an area measuring 6 "dhur". He has left an area of one Dhur for the purpose of lane. If also appears that Shri Rai Bahadur also sold a piece of land out of this plot on 31-3-1979 to Smt. Aranti Devi. She alsa subsequently purchased a piece of land lying in the west of the said house from the same owner on 31-12-1979. The total area as described in the plaint and denoted by Khasra No. 175/1 is 8 Biswa. Admittedly Smt. Aranti Devi also became co-sharer of the respective areas purchased with the plaintiff with boun daries described in their sale-deed. The grievance of the plaintiff- respondent is that the defendant-Appellant started interfering in the possession and subsequently raised a construction over the disputed portion of the plaintiff-appellants' land. During the pendency of the suit the plaintiffs claimed a relief regarding demolition and restoring of the encroached portion to their original possession as the defendant his raised a con struction in the plaintiff land. The plea of the defendant was that the defendant has purchased the house towards the north of the land covered by the plaintiff s sale-deed or that from Raj Bahadur, and defendant raised a construction before the filing of the suit. Both the trial court and appellate court found that the defendants-appellants have trespassed over the land which is in dispute by way of construction and ordered for demolition. It may be pointed out that the local Commissioner, who was Advocate was also appointed and he also found encroach ment. I am informed that the Advocates are empanelled as local Commissioner and they get also training of Surveyor before they are entrusted to this job in the State of U. P. The appellate court arrived to the following finding: "firstly, a calculation reveals and discloses also that the land in dispute goes to complete the entire area of 11 Dhur from the plot No. 175/1 area 8 Biswa as available in the sale-deed dated 4th August, 1975. Secondly, the claim of the plaintiff-respon dent will prevail because his sale-deed from the same common owner is earlier and the same was acted upon also. Thirdly, the defendant-appellant No. 2 will get the land in plot No. 175/1 through her both the sale- deeds dated 31st of March, 1979 and 31st of December, 1979 after adjusting the land to the, plaintiff- respondent only. "
(3.) THE trial court was also of the view that Smt. Aranti Devi or her husband has not appeared in support of the averment and which was a very much material to throw a light on the case. This is how the present Second Appeal has been filed. The following questions of law had been framed at the time of admission of the present Second Appeal: "1. Whether the entire area of 11 Dhur land purchased by the plaintiff through the sale-deed is in possession of the plaintiff and the finding of the courts below are erroneous due to miscalculation of the area in the plaintiff's possession through the sale deed? 2. Whether the area within the boundary mentioned in the sale-deed and in the posion of the plaintiff shall prevail as against the mis-description of length and breath in the sale-deed?";