- (1.) S. K. Phaujdar, J. The appeal was heard on the point of admission on 1-4-97 in presence of Sri YK. Berman for the appel lant and Sri O. K. Tripathi for the caveater-respondent.
(2.) THIS second appeal is directed against the judgment and decree dated 23-2-1997 passed by the IVth Additional District Judge, Mathura, in Civil Appeal No. 108 of 1991 which had confirmed the judgment and decree of the IIIrd Additional Civil Judge, Mathura, dated 12-8-1991 in Original Suit No. 222 of 1990. The suit was filed by the present caveater for possession of the suit property and for restraint on future disturbance in his possession by the defendant. Certain area was developed by one Praveeen Kumar for setting up a colony under the name of Shanti Nagar. He had subdivided the area into smaller plots and sold away the same to different persons. One such plot No. 31 was sold by Praveen Kumar to one Sri Rajesh Kumar in 1 974 and Rajeshwas put in possession. Subsequently, this Rajesh sold this plot No. 31 to the present plaintiff in the year 1975 and delivered possession to him. Taking chance of the temporary absence of the plaintiff, who had been in military service, the defendants, trading no concern with plot No. 31, had started making a construction on the said plot. They also declared themselves to be the owners of the plot in question and they based their title on the basis of pur chase of plot No. 38. It was the case or the plaintiff that plot No. 38 was for away from plot No; 31 and there was not even a com mon boundary between these two plots, hence the suit was filed. The defendants had taken up a plea in the written statement that the suit property bore plot No. 38 only and not plot No. 31. It was contended that the plaintiff had no concern with plot No. 38. According to them, plot No. 38 was sold in the year 1974 by Praveen Kumar to Smt. Manjushri and she sold it away to the defendants in the year 1988. Manjushri was in possession of the property since 1974 and the defendants are in possession since 1988 and the defen dants had acquired right by dint of adverse possession as well. The trial court framed several issues including one of ownership and possession of the plaintiff and another of identity of the suit property. On analysis of the evidence on record, the trial court found that despite certain discrepancies in the area, the land in suit was plot No. 31 only, having bounded on two sides by plot Nos. 32 and 30. He ruled out any possibility of this being plot No. 38. The trial court also found that plot No. 31 was in possession of the plaintiff and the defendants unauthorisedly took possession thereof and started construction. The trail court accordingly decreed the suit and directed delivery of possession and also restrained the defendants from interfering with the possession of the plaintiff after delivery of the same to him.
(3.) THE defendants filed a first appeal and the findings of the courts below were confirmed and the appeal was dismissed. The learned counsel for The appellant pressed The appeal on The ground that The plaintiff had purchased a plot measuring 80x50 ft. and The trail court found that The dimensions of The suit plot varied from These described dimensions of The plot of The plaintiff. It was contended that on The basis of this very finding The suit of The plaintiff should have been dismissed. It was stated that The identity of The suit plot as The land of The plaintiff could not be established and The plaintiff was not entitled to The decree. A point was furTher raised that when There is a conflict or inconsistency between measurements and boundaries, The meas urements would prevail.;