- (1.) With the consent of learned counsel for the parties, the aforesaid second appeal has been finally heard at the admission stage. The appellants have preferred the above second appeal being aggrieved against the judgment and decree dated 20.11.2018 passed by Additional District Judge / Special Judge, P.C. Act, Court No.4, Lucknow in Regular Civil Appeal No.9/2018 whereby it allowed the appeal of the plainitff-respondents and decreed the suit, reversing the judgment and decree passed by the Additional Civil Judge (Junior Division), Room No.37, Lucknow passed in Regular Suit No.938/2000 by which the suit of the plaintiff-respondents had been dismissed.
(2.) Shri Ashok Kumar Pandey, learned counsel for the appellants has vehemently urged that the first appellate Court has committed grave error in allowing the appeal and decreeing the suit of the plaintiffs-respondents without meeting the reasons given by the trial court for dismissing the suit. His submissions is that the plaintiffs had instituted a suit for permanent injunction in respect of Khasra Plot No.2318 and Plot No.2319, situated at Village Kanausi, Paragna, Tehsil and District Lucknow. It has been submitted that though the suit was filed indicating the khasra number, but nohwhere in the entire plaint, the boundaries have been disclosed. In absence of any boundaries, the property could not be identified and, therefore, the institution of the suit was hit by provision of Order VII Rule 3 CPC which mandates while filing a suit the property in question must be properly identified by giving boundaries. It has further been urged that since the controversy primarily involved the fact that according to the plaintiffs, they were the owners of Khasra Plot No.2318 and Plot No.2319 of Village Kanausi and while the defendants-appellants are the exclusively owners of Khasra Plot No.2295 of Village Kanausi, therefore, it primarily involved a boundary dispute and as such it was necessary for the Court to have got a commission executed and only after identifying the location and boundaries could the suit be decreed. Since, no commission was executed, therefore, the first appellate Court was no right in decreeing the suit.
(3.) It has also been urged that the plaintiffs in the plaint had urged that they were the owners of the 3/4th of Khasra Plot No.2318 and Plot No.2319 of Village Kanausi and had also received the possession of the remaining 1/4th. However, in the garb of the aforesaid, it was the plaintiffs, who were trying to encroach upon the land of the U.P. Power Corporation Ltd., over Khasra Plot No.2295 and therefore, since, the plaintiffs had no come before the Court with clean hand, they are not entitled to a decree of injunction.;