- (1.) R. K. Mahajan, J. This is a Second Appeal directed against the judgment and decree dated 18. 12. 1980 passed by Shri Parmeshwar, Civil Judge, Basti by virtue of which he set aside the suit of the lower Court dated 11. 1. 1975 passed by Shri Ashok Kumar, Munsif, Basti by virtue of which the defendants were restrained to make any construction in the possession of the plaintiff-appellant over plot No. 195/1, 195/2, 197/1 and 1535/10 in the village Pakrijabti. He also passed a decree for demolition as mentioned in letters S. M. L. O. in plot No. 1535/10 = 1136/111 old and M. R. P. O. in plot No. 197/1.
(2.) THE suit was filed by plaintiff-appellant for permanent injunction on the basis of title and possession over the suit land. It was alleged that in 1935 there was exchange between the father of the plaintiff and the defendant, the plaintiff obtained plot No. 1952 and 1971 and in lieu thereof a portion of plot No. 177 and 178 were given to the defendant and as such became the owner of the disputed plot. It was alleged that the defendant raised construction on the plots No. 1535/10 and 197/1 by way of encroachment and as such the suit for demolition and of construction and further interference of any kind sought was filed. Learned counsel for the defendant-respondent denied the plea of the plaintiff-appellant in toto and submitted that they had raised construction in their property and not in the land of the plaintiff- appellant, as alleged. The trial Court gave a finding that exchange is not valid as exchange was not effected by registered document as required under the Transfer of Property Act read with Indian Registration Act. The trial Court was also of the view that since the plaintiff is the sole owner of the plot under which the construction has been done illegally.
(3.) THE appellate Court non-suited the plaintiff on the ground that there was no proper appointment of guardian of minor and decree against the minor is void and hence this Second Appeal has been filed. At the time of admission of this Second Appeal the following question of law was framed: "whether a decree passed by the trial Court should be set aside on the ground that some of the parties were minors neither even though an application had been moved for appointment of guardian aid litem during the proceedings in the courts below which application remained pending and no orders were passed. ";