- (1.) PRESENT second appeal is against the order of the IInd additional District Judge, Ballia dated 30th March, 1977 arising from the suit no. 331 of 1969.
(2.) PLAINTIFFS-APPELLANTS filed the suit for permanent injunction restraining the defendants-respondents from causing any interference in the plaintiffs possession over the disputed house. It was claimed that the house was ancestral property and was in possession of the plaintiffs and without the partition, defendants-respondents were raising the construction. The Trial Court vide order dated 13th March, 1976 dismissed the suit with costs. It has been held that the plaintiffs have no share in the disputed premises and the disputed house was not the ancestral property of the plaintiffs and it was the self acquired property of defendant No. 4 only. It was also observed that the land over which the baithaka which is in dispute has been constructed formerly belonged to maharaja Dumraon from whom it was acquired by defendant No. 4, who subsequently constructed the house over the same from his self acquired funds. It has been observed that the plea of the defendant was supported by the statements of the witnesses and also by the evidences. The plaintiffs-appellants filed civil Appeal No. 130 of 1976, which has been dismissed with costs. The appellant authority recorded the following findings:- "the documentary evidence available on the record also speaks of the exclusive possession of deceased defendant No. 4 and is descendants over the house in suit. The extract of Kutumb register (Ex. A-1) shows that the defendant No. 4 was residing in house No. 49 exclusively belonging to him. He had been paying the Panchayat taxes. The electoral rolls prepared ir, the year 1960 and 1973 respectively (Exts. A-4 and A-5) also go to show that the defendant No. 4 was residing in house No. 49 whereas the plaintiffs raghunath in house No. 45 and Bindhyachal Prasad in house No. 46 separately. No doubt, the name of the father of the defendant No. 4 has been wrongly written in the electoral rolls which is nothing but a clerical error. Sri Dharmnath (P. W. 2) stated that defendant No. 4 was in exclusive possession of an area of 1-1/2 or 2 bighas of land. Thus, the documents on record also suggest the inference that the house was exclusively owned and resided by the house was exclusively owned and resided by the deceased defendant No. 4. Sri Param Hans Rai (P. W. 3) hails from a different village. He states that he was pasted as a Primary School teacher in the village during the period 1963-1968. Admittedly, the house in question was constructed decades before the year 1963. His testimony is of no avail. Sri bindhyachal Prasad (P. W. 1) and Dharm Nath (P. W. 2) are the claimants of the share in the house in question and are the interested persons. Their so object seems to be to snatch whatever they can afford from the vendees in a bargain for their own gain. The learned Trial Court has considered in detail that the land was acquired by the defendant No. 4 and constructed the house in question. His findings are well considered and well appreciated. There does not appear to be any scope for disagreeing with the findings recorded by him. As a result of what has been observed above, the appeal does not admit of any scope for interference with the judgment and decree in question, and it should be dismissed. "
(3.) THE present appeal has been admitted on substantial question of law arises from ground Nos. 2, 3 and 5 which reads as follows:- "because the Courts below did not even enter the question of the ownership of the land on which the disputed house was constructed. Because the Courts below failed to decide whether the house in dispute was constructed prior to private partition of the family or after it. Because there having been no partition in the residential house mere exclusive possession of defendant No. 4 could not apprise of his share of the house as the possession by one co-sharer as the possession by all co-sharers. ";