Deoki Nandan, J. - (1.) This is plaintiff's second appeal in a suit for permanent injunction restraining the defendant demolishing the plaintiffs building alleged to be situate in plot No. 484 (12 biswas 12 bis-wansies) of village Dudaheri, pargana Khatauli, district Muzaffarnagar, or from making a passage through that plot of land or from interfering in any way with the peaceful possession of the plaintiff over the building and the land. The suit was dismissed by the trial court. The plaintiffs appeal from that decree was also dismissed by the lower appellate court.
(2.) The substantial question of law, for determination of which, notice of the appeal was directed to be issued after hearing under O. 41 R. 11 Code of Civil Procedure, as formulated by this Court is; Whether the suit was maintainable.
(3.) The question arises this way: The consolidation of holding commenced in the village in the year 1962. Plot No. 1080 having an area of 18 biswas consisted of two parts, 1081/1 having an area of 5 biswas 12 biswansies on the northern side, and 1080/2 on the southern side covering the rest of the area, that is, 12 biswas 8 biswansies. The plaintiff applied to the Settlement Officer, Consolidation, for constructing buildings on plot No. 1080/1 and the permission was granted by the Settlement Officer, Consolidation, by an order dated 10th Oct., 1963. The respondent Kadam Singh preferred a revision from that order. He was absent when the revision was taken up for hearing by the Deputy Director of Consolidation. The Deputy Director while dismissing the same, held that the application for permission was misconceived, observing that the objection of Kadam Singh that he had a right of passage in plot No. 1080 and, therefore, the plaintiff, who was the opposite party before the Deputy Director of Consolidation, could not be allowed to construct buildings on the plot, was incorrect inasmuch as the right of passage, if any, could not fetter the right to construct, the building on the land and Kadam Singh could, if lie had any right of user, establish the same in a proper court. With these observations, the revision was dismissed by the Deputy Director of Consolidation by an order dated 16th Sept. 1965, a certified copy of which is Ext. 11 on the record. Kadam Singh appears to have applied for setting aside of the said order of the Deputy Director. The application was dismissed by the Deputy Director of Consolidation by an order dated 17th Dec, 1965, a certified copy of which is Ext. 12 on the record. In this order the Deputy Director of Consolidation considered the merits of the case and again observed that there was nothing illegal in the grant of the permission by the Settlement Officer, Consolidation, as his doing so, did not affect the scheme of consolidation. The observation to the effect that Kadam Singh could establish his right of user, if any, in a proper court, was, it was clarified, made without any prejudice to the case of either party. Although the point of time when the constructions in suit were commenced and completed by the plaintiff has not been specifically stated anywhere in the plaint, except for saying that the plaintiff "constructed his abadi" in the area of plot No. 1080/1 immediately after the grant of permission on 10th October, 1963, it appears doubtful from the facts and circumstances to be mentioned hereinafter that the constructions in suit were commenced in December, 1965, after the final order of the Deputy Director of Consolidation, Ext. 12, dismissing Kadam Singh's revision.;