- (1.) THIS is a plaintiff' s second appeal arising from a suit for possession over certain constructions shown by letters Va Bha Ksha and Pa Ta Bha Ra Ya Pha with the land underneath and land shown by the letters Ka Ra Ya Pha Da Kha on the map annexed to the plaint and for recovery of Rs. 50/-as damages.
(2.) THE plaintiffs alleged that the parties were descended from a common ancestor Sukkhu who had three sons Thakur Din, Mahabir and Mahadeo. THE plaintiffs Bhaggal and Rup Narain were the sons of Mahabir. Mahadeo and his three sons Bhagwan Dass, Raja Ram and Ram Lakhan were defendants Nos. 1, 2, 3 and 4 respectively. Sukkhu died about 45 years, before the date of suit, which was filed on August, 31, 1962, leaving him surviving his three sons Thakur Din, Mahabir and Mahadeo, that a few years after the death of Sukkhu, his three sons became separate in estate and residence about 40 years ago; that the house shown by the letters Ja Jha Ta Tha Da Ga Gha on the plaint map was ancestral and the sons of Sukkhu and their family members used to live separately in different portions thereof; that about 35 years ago the house was divided into three portions by metes and bounds, the western most portion Ja Jha Ta Chha was allotted to Thakur Din' s share; the middle portion Cha Chha Ta Tha Da Dha Na was allotted to the share of the plaintiff' s father Mahabir and the eastern most portion Da Dha Na Cha Jha Ga was allotted to the share of the first defendant Mahadeo and it was added by amendment of the plaint that the eastern most portion which was allotted to the defendant' s share was occupied before the said partition 35 years ago, by the plaintiff' s father Mahabir. THE plaint proceeds on to state that the land of plot No. 55 of Mohalla Makhdoom Shah Bare of the town of Jaunpur having an area of 8 decimals was in occupancy tenancy of the plaintiff' s grand father and after him it came to his sons but there were several litigations with respect to that land, and ultimately the northern portion having an area of 4 decimals of that land was held to belong to Ram Roop, and in respect of the southern portion thereof having an area of 4 decimals shown by letters Sa Kha Da Ma on the plaint map, the sons of Sukkhu were held to be the owners in possession. It may be stated that the land Sa Kha Da Ma is situate adjacent to and to the north and north east of the eastern most portion of the said ancestral house of the parties. It has then been pleaded by the plaintiffs that their father Mahabir, alone and after separation from his brothers acquired the land shown by the letters Ka Kha Ga Gha on the plaint map on Patta Istmarari from its proprietor Mathura Prasad on August 6, 1925. This land is on the east and adjacent to the eastern most portion of the ancestral house of the parties. It is then pleaded that about 34 years ago the plaintiff' s father Mahabir added the land shown by the letters Pa Ta Ga Da forming part of the 4 decimals of land which the three brothers had been held entitled to in the litigation with Ram Roop, to the land taken on lease as aforesaid, and from his own money he constructed the buildings shown by the letters Pa Ta Gha Ra Ya Pha Da and denoted by letters Ksha on the plaint map and continued to be the owner in possession of the land Ka Kha Da Pa Ta Gha Ra along with the said constructions thereon up to the date of cause of action. It is then pleaded that defendant No. 1 also added the land denoted by the letters Ta Tha Da Ga out of the said 4 decimals of land to the north of the eastern portion of the ancestral house which had been allotted to him. It is then alleged in the plaint that on the Western one-third portion of the said 4 decimals of land to which the brothers were held entitled in the litigations with Ram Roop, Thakur Din erected the constructions shown by the letters Da Ma: that Thakur Din sold his western most portion Ja Jha Ta and Chha and the constructions shown by the letters Go out of the said 4 decimals of the land to the plaintiff' s and the plaintiff' s are after the sale, owners thereof. THE cause of section alleged in the plaint is that the first defendant has a powerful gang and the plaintiff' s have occasionally to go out in connection with business and taking advantage of the some the defendants, in the absence of the plaintiff' s, opened a new door on Aug. 22, 1962 at the place marked ' Z' in the wall Ga Gha which is the eastern most wall of the portion of the ancestral house allotted to the defendants and also broke open the locks of the plaintiffs' building Pa Ta Gha Ra Ya Gha Da on their lease land and unlawfully dispossessed them from the same as also from the Kothari marked Chha and the Osara marked Ba Bha, on the plaint map, as also from the open land Ka Kha Da Pha Ya Re which was also part of the land obtained by Mahabir on lease from Mathura Prasad. The defendants denied the plaint allagations generally and with regard to the land said to have been acquired by Mahabir alone on Patta Istamarari from Mathura Prasad, it was alleged that it had been acquired when the family of the descandants of Sukkhu was joint. The defendants pleaded that the partition among the three brothers took place about 30 years ago; that keeping in view the number of their issues and the convanience of residence Mahabir was allotted the portion Ta Tha Cha Chha of the anestral house. " Juzo Abadi Pahi Waka Jagdishpur." and Thakurdin who had no issue was allotted the western portion a part of which was Kaccha and part pucca and that the house to the east of the plaintiff' s house which was partly Kaccha and partly Pucca and the rest of the Abadi to the east up to the police Chauki and the house of Chhotey and Abadi towards the South of the Ahata of Ram Roop was allotted to the share of the defendants, that is to say the entire land and Abadi to the east of the line Ma Da Cha was allotted to the share of the defendants on which they had continued in possession ever since. This plea was contained in para. 20 of the written statement. In the next paragraph the defendants pleaded that to the south of the Ahata of Ram Roop the defendants themselves constructed an Osara and Kothari quite some time ago and constructed a Kothari and Osara to the east from their own funds and have continued in adverse possession thereof as owners and have been continuously using the eastern portion and opening a door from their house. In the next paragraph 22 of the written statement, it has been pleaded, by the defendants that neither the plaintiff nor Thakurdeen were ever in possession of any part of the land or Abadi to the east of the line Ma Da Cha nor they had right of any kind therein. In para. 23 of the written statement, the defendants pleaded that they had been using the eastern land by manufacturing earthen pots thereon (the parties being Kumhars by caste) and were keeping their earthen pots burnt in the Awan in the northern Osara and had grown trees and flower plants etc., thereon. In paragraph 24 of the written statement the defendants pleaded that the eastern Kothari and Osara and the southern Kothari and Chhappar were constructed by them and they and their sons were living in different portions thereof. In para. 25 of the written statement the defendants alleged that the constructions in dispute were made at a cost of more than Rs. 2,000/-and were constructed by the defendants themselves and the plaintiff' s or their predecessors never stopped them from doing so and on these facts the suit was barred by estoppel and acquiescence. It was further pleaded by the defendants that the plaintiff' s kept their Awan etc., in a part of the larger area of Pahi which was allotted to their share; that the defendant was the youngest of the brothers and was not bound by any claim of exclusive right made by Mahabir to the land in dispute, in Suit No. 286 of 1846 in the court of the Munsif City, Jaunpur, between Ram Roop v. Thakur Deen. In the end the defendants pleaded that they were in adverse proprietary possession for over 12 years on the constructions in suit and the suit was barred by limitation and the plaintiff' s were not entitled to any damages. It was lastly urged that Thakur Deen was very old and weak of mind and if the plaintiff' s had got any sale-deed executed by him by taking advantage of his old age, the defendants were not bound by the same. The trial court framed the following 7 issues : (1) Whether the plaintiff' s are the sole owners of the construction and land in suit ? If not to what extent ? (2) Whether the land and constructions in suit belong to the defendants ? Were the constructions made by them ? (3) Whether the plaintiff' s were entitled to any damages, if so to what amount ? (4) Whether the suit is barred by estoppel and acquiescence ? (5) Whether the suit is barred by time ? (6) Whether the suit is under-valued and court-fee paid insufficient ? (7) Relief.
(3.) ISSUES Nos. 1 and 2 were taken up and discussed together and on a detailed consideration of the evidence on the record it was found by the trial court that the plaintiff' s are the owners of the disputed land and constructions lying thereon. Issue No. 1 was accordingly answered in the affirmative and issue No. 2 in the negative. The trial court held that the plaintiff' s were entitled only to a nominal sum of Rs. 5/- as damages. On issue No. 4, the trial court found that the defendants had wrongfully dispossessed the plaintiff' s within 10 days of the filing of the suit and accordingly on issue No. 5, it was found that the suit was not barred by time. Issue No. 6 had been decided earlier and the defect of undervaluation found by the trial court was removed by the plaintiff' s before commencement of the final hearing of the suit. In the result the trial court found the plaintiff' s entitled to the relief of possession over the land and the constructions in suit and damages in the sum of Rs. 5/- only. The lower court has on appeal reversed, the trial court' s decree and dismissed the suit. Besides hearing the parties the learned Civil Judge to whom the appeal must have been assigned for hearing by the District Judge also made a local inspection of the property in suit on 5-5-1966 and placed on record his inspection note dated 6th May, 1966.His inspection note is paper No. 20-Ka;