Ram Sukh vs Gaya Din and another

Hari Nath Tilhari J.

This is plaintiff''s Second Appeal against the judgment and decree dated 1391978 delivered by Shri Ashok Kumar, Civil Judge, Pratapgarh, in Civil Appeal No. 322 of 1976, dismissing the plaintiff''s appeal and confirming the judgment and decree dated 7101976, passed by Sri Ram Jiwan Gupta, IVth Additional Munsif, Pratapgarh, in Regular Suit No. 1094 of 1974 (Ram Sukh v. Gaya Din and others) dismis�sing the plaintiff''s above mentioned suit and claims made therein.

The plaintiffappellant filed a suit for permanent injunction as well as for decree for mandatory injunction against the defendantrespon�dent, directing them to handover vacant possession of suit land after having removed Chhapper and other construction raised by them and claimed damages, with reference to property in dispute given in detail and as described in the plaint.

The plaintiff and defendants are related to each other as per admitted pedigree given as explained (hereinafter) :

MAAN

Chandrika Gazi

Ganga 1

Gaya Deen

Dinai

Mahavir

Ram Niwas

Ram Sukh

Ram Phal

According to plaint case, plots in dispute are ancestral abadi of the plaintiff and defendants. The property in dispute has been described by letters ''A B C D E'' and has been encircled by dotted red lines.

The plaintiff''s case is that Maan, mentioned in the plaint pedigree, had died long ago and after the death of Maan, Maan''s sons separated and then after having demolished the house and Maan''s sons constructed their own separate houses. According to plaint allegations Chandrika, Ganga and Dinai also died with the passage of time. The house belonging to Chandrika is occupied by his son Gazi while the house of Ganga is in occupation of defendant No. 1 Gaya Deen. Plaintiff further averred that the house belonging to Dinai and the abadi came to be in occupation and possession of one Mahabir and that after Mahabir''s death his sons entered into possession thereof. That Mahabir''s sons separated from each other and the northern portion thereof is in use and occupation of plaintiff and defendant No. 2.

Plaintiff have further averred that the door and dooar and moohar of the house of Dinai was towards the north and now the door of house of plaintiff and defendant no. 2 opened towards north and on the same side i. e. on the north, plaintiff and defendant have their sahan and nikas pathas while Ram Newaz opened the door of his house on the eastern side. That Dinai during his life time, used the land lying towards the north of his house primarily as his abadi land and land appurtenant and he used to tether his catties, and khoohtas used to be fixed thereon and he used the same for other such user as well as for egress and ingress and used to sit over that land, and had his bamboo clumps and Macha thereon. That after the death of Dinai his heirs continued to be in the possession and user of the same as such, i. e. as sahan land for the purpose of tethering catties, keeping khootas fixed as well as for similar other user as was done by Dinai as land appurtenant to that house and thereafter the plaintiff and defendant No. 2 continued to use the same as such and on the abolition of Zamindari and enforcement of U.P.Z.A. & L.R. Act, the house of Dinai alongwith land appurtenant thereto became settled with the plaintiff and defendant No. 2 under Section 9 of the U. P. Z. A. & L. R. Act. The plaintiff''s claim is that suit land is the abadi land i. e. the land appurtenant to the house of plaintiff and defendant No. 2. On this land, the plaintiff asserted that Madaha, Haunda, Khoonta, Bamboo Clumps etc. are situated which belong to the plaintiff and the plaintiffs and defendant No. 2 continued to be in the possession of the said land. Defendant No. 1 has got no concern with the property in dispute which has been demarcated by letters ''A B C D & E'' in the Com�missioner''s map. The plaintiff alleged that the cause of action for filing the suit accrued to the plaintiff against the defendant No. Ion June 1, 1974 when defendant No. 1 attempted to take illegal possession of the suit property and to cut the trees and Bamboo clumps. The plaintiff fur�ther alleged that in the middle of June, 1974 defendant No. 1 forcibly and illegally raised a mudwall 6'' in height and put the Madaha thereon and thereby the defendant No. 1 deprived the plaintiff of the land measuring 4.48 Dhur described by small ''a b c d'' in the Commissioner''s map dated 681975 and they further threatened to deprive the plaintiff and defendant No. 2 of the possession of the land and Bamboo clumps, Trees and the other things situate thereon. That on account of plaintiff and defendant No.2 having been deprived of the possession of the land described by small letters ''a b c d'', the plaintiff and defendant have been subjected to damage and loss to the tune of at least Rs. 10/ per day. That to the west of the house of plaintiff and defendant No. 2 and their sahan darwaza land, house of Gaya Deen and his abadi are situated which are quite separate from the house and abadi of plaintiff and defendant No. 2. The bahan darwaza and abadi of land of Gaya Deen''s house to the North of Gaya Deen''s house and Gaya Deen has permitted his brotherinlaw Kandhai to establish himself thereon. With these allegations, in the plaint and expression of cause of action, plaintiff claimed the relief for permanent injunction direc�ting the defendant No. 1 not to interfere with the possession and occupa�tion of the plaintiff and defendant No. 2 over the land in dispute which has been demarcated by red dotted lines and by Capital letters ''A B C D E'' as well as not to cut or get removed or damaged in any manner, the tree?, bamboo Clumps, Madaha, Honda or Khoonta belonging to plaintiff and defendant No. 2. Plaintiff further claimed that the decree for mandatory injunction as well directing the defendant No. 1 to remove the construc�tion raised by him or Chapper etc. placed by him over the part of land described by small letters ''a b c d'' and to hand over the possession thereof to the plaintiff and defendant No. 2 within time prescribed in the decree.

Gaya Deen, defendant No. 2 filed a written statement. He has admitted the plaint pedigree. Rest of the allegations made in the plaint have been denied by the defendant respondent. Defendant has alleged that the land in dispute is unidentifiable on spot and that plaintiff has not clearly given the plot numbers of the land in dispute nor the same has been shown in the siteplan attached to the plaint, as such, no proper reply can be given without a Commission being issued to demarcate and specify the land in dispute. The defendant asserted that during the life time of Ganga Deen and Dinai, there had been a partition between Ganga Deen and Dinai and since then Ganga and after him, his heirs i. e. answering defendants are and have been in possession, use and occupation of the land in dispute as well as the trees standing thereon. The defendant asserted that the land in dispute has been the sahan land of the defendant and that plaintiff and defendant No. 2 had no concern with either the land in dispute or with the trees, the Bamboo Clumps Haunda, Khoonta and Saria situated thereon. Defendant asserted that the sahan land and abadi land of the plaintiff''s house has always been towards the East of that house. The defendant further alleged in the written statement that a month prior to filing of the suit, the plaintiff forcibly opened a door on the nor�thern side of his house and constructed a platform (Chabutra) of the mud illegally on the Northern side of the house. That on the basis of this illegal and unauthorised act of the plaintiff, the plaintiff cannot get or acquire any right or title with respect to land lying on the North. The Saria which is alleged by the plaintiff to have been constructed by the defendant anew is in existence since long and is long standing and is adjacent to defendants'' field and had been looked after and used to be repaired by him i.e. defendant in accordance with the need and requirements from time to time. The defendant further asserted that the answering defendant has since long been in use and occupation of the land in dispute as well as of the trees, Bamboo Clumps, Cheda and Saria also since very long time and as such has perfected all his rights over them. According to the allegations made in the written statement, suit has been time barred and had been liable to be dismissed.

The defendants filed additional written statements dated 10111975 asserted the land in dispute to be his sahan darwaza and claimed himself entitled to raise the Marha under village abadi Land Act No. 3 of 1948.

On the basis of the pleadings of the parties, the Trial Court framed as mary as eight issues which read as under:

Whether the land in dispute is the plaintiff''s abadi ?

To what relief, if any, is the plaintiff entitled ?

Whether plaintiff and defendant No. 2 are owners in posses�sion of the land in suit and things existing thereon including bamboo clumps, trees, hauda etc. or defendant No. 2 ?

Whether the land in suit is appurtenant land of the house of the plaintiff and defendant No. 2 or defendant No. 1 ?

Whether the door in the house of the plaintiff was opened towards the land in suit one month before the institution of the suit as alleged in para 19 of the written statement ?

Whether the Saria in suit in the land in suit is 30 years old as alleged by the defendant No. 1 in his statement under Order 10 rule 2 CPC or new as alleged in June, 1974 ?

Whether the suit is beyond limitation ?

Whether the suit is not properly valued and the Court fee paid is insufficient ?

The Trial Court i. e. learned Munsif has recorded the following findings :

(a) That the suit has been properly valued and the Court fees paid in insufficient (sic).

(b) That plaintiff has failed to prove his case. He has failed to prove his rights and title over the suit land and the trees standing thereon and has failed to prove that his northern door has always been existence.

(c) That the defendant has proved his care as well as that the plaintiff''s deewar and Mohar earlier had been towards east and now he has opened new door towards north and that his Marha on the land in dispute has been since before.

With these findings, the Trial Court has dismissed the plaintiff''s suit for injunction.

Feeling aggrieved from the decree of the Trial Court dismissing the plaintiff''s suit, the plaintiff filed the Regular Civil Appeal No. 322 of 1976 in the Court of District Judge, Pratapgarh, which after having been transferred to the Court of Civil Judge has been dismissed by the learned Civil Judge, Pratapgarh by judgment and decree dated 1391978. It may be mentioned here that plaintiff in the plaint has described himself as the son of Mahabir but in the pedigree given in the plaint there has been some discrepancies which is to this effect that in the pedigree given in the plaint, he has been shown as one of the three sons of Dinai while correct position as appears from the plaint description and the deposition of DW 1 Gaya Deen, Dinai had a son Mahabir and Mahabir''s sons were Ram Niwas, Ram Sukh and Ram Phal. This has been admitted by DW 1 Gaya Deen as well, so in the pedigree mentioned above at page 2 of this judgment Mahabir has been shown as son of Dinai and Ram Niwas, Ram Sukh and Ram Phal has been shown as son of Mahabir.

The learned Civil Judge has affirmed the findings of the trial court and has held that the door towards the Nortn of the plaintiff''s house is not in dispute nor any relief has been claimed by the parties in respect thereof so, even if, it is newly opened door, it is immaterial. He has taken the view that as in partition between the parties, plaintiff had got land not more than 4 Biswas so plaintiff has failed to prove his case. The lear�ned lower appellate court has held that the land demarcated by letters ''A B C D'' so far is concerned, the plaintiff has failed to prove his case. He has failed to prove his title as well as his possession over it and if it is taken to belong to him then this will exceed the limit of four biswas land as according to him only four biswas land was allotted to his share.

Having felt aggrieved from the decree of the learned appellate Court, plaintiff has comeup in Second Appeal.

I have heard the learned counsel for the appellant Sri S. K. Vidyarthi as well as Sri Akhilesh Sahai, learned counsel for the respondent at some length.

Sri S. K. Vidyarthi, learned counsel for the appellant submitted that while recording the finding to the effect that plaintiff has failed to prove the land in dispute to be appurtenant to his house and to be his sahan darwaza and to be that of sahan darwaza of defendant No. 2 the courts below acted perversely and illegally when the learned courts below assumed that plaintiff cannot have any sahan darwaza land accross the rasta in front of his house towards north. He further submitted that the court below erred in law in assuming that plaintiff would not have cons�tructed a Saria in his field if the land in suit was his sahan darwaza. Shri Vidyarthi submitted that such an assumption is contrary to law and un�warranted and this have led to an illegal and perverse decision of the case on facts and in law. Shri Vidyarthi further submitted that the lower appellate court misread the deposition of the plaintiff Ram Sukh as well as erred in not taking into consideration the Commissioner''s map and the report which would have indicated of the property in dispute to be appurtenent to the house of Dinai and which would have led the court below to arrive at proper decision of the question involved. Shri Vidyarthi further submitted that court below has misread the statement of Ram Sukh in reading in his deposition that on partition among the sons of Maan each son was given four biswa abadi land. He submitted that Ram Sukh i. e. plaintiff has stated that they were given 4.48 Dhur land each. By this misreading of the statement of plaintiff, the learned court below has wrongly observed that plaintiff is already in possession of more than 4 Biswa abadi land and he cannot, therefore, be owner of land in dispute and this has resulted in an erroneous decision in the eye of law and in the miscarriage of justice in the judgment and so the judgment and decree of the courts below are liable to be set aside.

Sri Vidyarthi further submitted that the learned court below erred in law in holding the issue No. 5 to have been redundant as to whether the door of plaintiff''s house on the Northern side was opened one month''s before the institution of suit. Shri Vidyarthi submitted that if the court below would have recorded the finding on issue No. 5, one way or the other, it would have enabled it to appreciate the truth and to reach a correct conclusion and failure to decide this issue has further led to an erroneous decision in law and has vitiated the finding of the courts below in the eye of law. Shri Vidyarthi further submitted that a perusal or reference of the Commissioner''s map will show that the land in suit is appurtenant to plaintiff''s house, who has not got cattle troughs or pegs for tethering his cattle at any other place nor has he got any other place for storage of fuel wood, cowdung cakes and other articles i. e. place other than on the land in suit. Sri Vidyarthi further submitted that the court below erred in taking the view that the plaintiff''s abadi was upto western ''mend'' of cultivatory plot No. 730 and also towards south and west is wholly unfounded and is not based on evidence on record and this finding of the court below as is based on no evidence it is vitated by error of law of substantial nature.

Sri Vidyarthi further submitted that defendant No. 1 having laid no claim to the construction indicated by letters Cl , C2 and other things on the land in suit except the land covered by Saria indicated by letters ''a b c d'', the learned courts below committed error of law in not decreeing the plaintiff''s suit with respect thereof. He invited my attention to the following portion in the judgment of the learned lower Appellate Court which reads as under :

He further invited my attention to the following portions

Sri S. K. Vidyarthi, learned counsel for the appellant submitted that this approach of the learned Lower Appellate Court is contrary to law and perverse.

Sri Vidyarthi further submitted that the learned Lower Appellate Court erred in law in taking the view that because defendant No. 2 has neither made any claim nor has filed any written statement, so the claim of the plaintiff about the land in dispute cannot be accepted. Shri Vidyarthi submitted that the learned courts below did not apply their mind to the law relating to the pleadings which is to the effect that if any of the plaintiffs'' pleas are not denied, those: pleas are deemed, to have been, admitted, so far a particular defendant is concerned. That when defendant No. 2 Ram Phal did not contest the plaintiff''s claim to the effect that northern portion of Dinai''s house had been given to plaintiff and defendant No. 2 and the land towards North is the joint sahan land of the plaintiff and defendant No. 2, the learned court below ought to have taken the view that it is admitted case of plaintiff and defendant No. 2 that property in dispute belonged to the plaintiff and defendant No. 2 and the portion to the south of Dinai''s house had been given to Ram Niwas in partition and, therefore, Ram Niwas was not a necessary party for the purpose of the suit and the learned court below erroneously and illegally held that with respect to the property in dispute including Cl and C2 as well as the property covered by ''ABCD'' and ''abed'', no decree can be granted in favour of the defendantappellant.

Sri Vidyarthi, learned counsel for the appellant, submitted that it is well settled that a riyaya can have sahan land as much as necessary and the passing of road or galiyara between the building and disputed land claimed to be sahan land or land appurtenant to that building does not adversely affect the right of Riyaya to claim a land to be a sahan land which is across the village path or galiyara. He submitted that a land appurtenant or a sahan darwaza can be on both the sides of a rasta passing infront of the house of the claimant. Thus, Sri S. K. Vidyarthi, learned counsel for the appellant, contended that the learned court below committed substantial error of law in deciding the case and the order of the court below was illegal and perverse. That learned counsel for the appellant Shri S. K. Vidyarthi contended that Ram Sukh had stated that on Maan''s death his property was inherited by his three sons, namely Chandrika, Ganga and Dinai and thus each of the sons of Maan got 4.48 dhur of the abadi land but the court below misread the statement of PW 1 and had taken it to be admission of the plaintiff that plaintiff''s abadi land was 4 Biswa and, therefore, on this wrong assumption, Sri Vidyarthi contended, the court below had wrongly assumed that plaintiff had admitted his entire land to be 4 Biswa and, as such, the whole approach of the court below has been based on misreading of the evidence as well as perverse in law and, as such, the appeal be allowed and the plaintiff''s suit be decreed or in any case, the case be remanded for decision afresh by the court below on the correct prospective.

Sri Akhilesh Sahai, learned Counsel for the respondents con�tended that the decision of the courts below is concluded by concurrent findings of fact and it does not raise any substantial question of law. Shri Akhilesh Sahai contended that the question whether the land in dispute has been sahan land of the plaintiff, is a pure question of fact, and the finding is that the plaintiff has failed to prove the land in dispute to be the sahan land of the plaintiff and defendant No. 2 as alleged in the plaint and, as such, the second appeal is liable to be dismissed.

He submitted that the entire case relates to the question of appreciation of evidence and no question of law is involved. He emphasised that according to PW 1, Chandrika had got only 4 Biswa of the abadi land and, therefore, there was nothing wrong on the part of the Courts below in having taken that matter into consideration while recording the finding of the question of facts involved in the appeal. Shri Sahai contended that in this view of the matter, the Second Appeal needs be dismissed. He submitted that the question with respect to land ''abed'' or the cons�truction Cl and C2 could not be decreed in the absence of necessary parties and without Ram Phal having made any statement or without his filing any pleadings in the form of written statement so he contended that appeal may be dismissed as being without force. He further submitted that trial of issue No. 5 was not very material but if this Court thinks fit, it may call for a finding from the learned Lower Appellate Court on the basis of evidence on record or it may itself record finding on that question, if that is necessary for the purposes of this case.

I have considered the respective contentions of the learned Counsel for the parties and have gone through the record. There is no doubt that the Second Appeal lies only on substantial question of law since the amendment of section 100 of the Code of Civil Procedure by Act of 1976 w. e. f. 121977 so this Second Appeal may be said to be governed by amended Section I00 of the Code of Civil Procedure. The substantial question of law is one a decision of question of law which may materially substantially effect the decision of the case as regards rights of the parties thereto. Thus in Second Appeal, a decision contrary to law or contrary to the custom having force of law as regards rights of the parties can no doubt be said to be a substantial question of law which may substantially affect the rights of the parties and the decision of the case or appeal. A decision on a question fact, if it is based on misreading of the pleading or misreading of evidence or the finding on a question of fact if is based partly on admissible and partly on inadmissible evidence or material or that a finding of fact has been arrived at after having ignored certain admissible material evidence or that finding or decision has been arrived at on the basis of erroneous approach in law to the question involved or it has been arrived at in a perverse manner i.e. suffers from perversity, then such a finding may be said to be one that may come within the frame work of the ex�pression finding vitiated by error of law of substantial nature or may be said to suffer from substantial error of law, but a pure and simple finding of fact based on wrong or misappreciation of evidence nor misreading thereof, such a finding can not said to be one involving a question of law. As regards, finding of fact, it is well settled principle of law that a finding of fact, based on appreciation of evidence on record, however, grossly erroneous it may be, the said finding or decision cannot be interfered with in a Second Appeal but if the case suffers from mistrial or failure to decide any material issue, that may be a case in which this Court may interfere under Section 100 CPC.

In order to decide the rights of the parties in the present case since after the enforcement of the U. P. Z. A. & L. R. Act whether a person has acquired rights in certain property in the abadi as land appur�tenant, what is material to be considered is as to whether the parties or person claiming the rights, had been holding the building or property of the nature mentioned in Section 9 of U. P. Z. A. & L. R. Act, had been making use of the land appurtenant to the same as land appurtenant or Sahan Darwaza for the beneficial enjoyment of that building.

Section 9 of the U P. Z. A. & L. R. Act confers rights on person holding building in abadi the right of land appurtenant of sahan Darwaza subject to conditions specified.

It is also well settled that a Riaya may have the Sahan Darwaza on all the sides of a house. It is user of the land on the date of vesting and prior thereto is material. The passing of a galiyara or Rasta or drain in between the building or house and the land over which in relation to a building or house, the rights of appurtenance is claimed, does not adversely affect the sahan darwaza right or rights involving rights of a person to a land as land appurtenant In the case of Special Manager Court of Wards, Balrampur Estate v. Shyam Lal (AIR 1936 Oudh 324) it has been held by the Chief Court of Oudh, that land appurtenant to residential house need not be actually adjoining the house and the user of the land for the enjoyment of the house by the claimant or by person is necessary to be proved with certain length of period may be of 12 years as held by Chief Court of Oudh in the case of S. Murtaza Alt v. Emperor, reported in (AIR 1947 Oudh page 131).

The material observation of the Hon''ble Chief Court of Oudh in the case of Balrampur Estate (Supra) reads as under :

"As to the argument that the land in question cannot be treated as appurtenant to house because there is a public road interven�ing I do not think there is any force in the contention. No authority has been cited for the view that appurtenant land must actually be adjoining the residential house, prima facie, I do not see why a tenant should not use land opposite his house but on the other side of public way for the purpose of tethering his cattle and why such land should not be regarded as appurtenant to his house. In absence of any authority to the contrary I think it may be held that the land is appurtenant.''5

In this context it was necessary for the Court below to have considered the question of the existence of the northern door of plaintiff'' house subject matter of issue no. 5 which it failed to try though a decision of that issue would have been relevant for the purpose of deciding the rights of the parties and would have helped the Court in arriving at just and proper a decision. As appears from the perusal of the Commissioner''s map, the land in dispute lies infront of the house of the plaintiff and defen�dant No. 2 as it is admitted position that the house of Dinai, according to PW 1 had been inherited by his three sons, namely, Ram Niwas, Ram Sukh and Ram Phal and other son. According to statement of PW 1 and pleadings of the plaintiffs in the plaint, southern portion of the house of Dinai had come to the share of Ram Niwas and the Northern 2/3rd portion of that house came jointly to the share of plaintiff and defendant No. 2 Ram Phal. According to statement of DW 1, GayaDeen and Ram Niwas had separated sometime in 1964 or so.

A perusal of the Commissioner''s report shows that while plaintiffs claimed that the land in dispute shown by letters ''A B C D E'' lying to the North of the plaintiff''s house and chabutra as the land appurtenant to the house or as sahan land, and that the plaintiff had asserted that defendant had no concern with the land lying infront of the plaintiff''s house upto point''A B''. The defendant''s Counsel stated before the Commissioner that the sahan darwaza of the plaintiff''s house towards East but he did not point out where and on what plot or portion, the sahan darwaza of plain�tiff''s house did lie. It is beyond doubt, and it is admitted fact that plain�tiff and defendant No. 2 have got their sahan darwaza. According to plaintiff, his sahan darwaza had been since the time of Dinai towards the North of the house and chabutra and it is upto the point ''A and B'' and according to plaintiff, the plaintiff and defendant No. 2 had got that land along with Northern portion of the house. The land in dispute lies imme�diately North of the plaintiff''s house and NorthEast of the Chhapper shown by letter x and y in the Commissioner''s map on Plot No. 744. The evidence on record filed on behalf of the plaintiff consisting of PW 1 Ram Sukh shows that the Sadar Darwaza of the house of Dinai was towards the North and it has already been towards North. Gaya Deen, defendant''s house is to the west of the plaintiff''s house and as per Commissioner''s report there exist Chhapper and Baithak.

PW 1''s statement to the effect that main door of Dinai''s house was towards North finds support from the statement of PW 2 Bhola who has stated that the house of Ram Sukh is of the time earlier to my under�standing and is of since before the life time of Dinai. The main door of Dinai''s house is towards the North since long and that the land in dispute is the part of abadi land of Dinai, his heirs and had been in their use. He had also supported the statement when partition did take place among the grand sons of Dinai, Northern portion of the house had gone to the share of plaintiff and Ram Phal or defendant No. 2 while Ram Niwas got the Southern portion of the house and thereafter Ram Niwas opened Eastern door. He has stated that since after the partition between the grand sons of Dinai, Ram Niwas started using Eastern door and Ram Sukh continued to be using the Northern main door.

DW 1 Gaya Deen on being crossexamined, could not state that Dinai had abadi land to the East of his house and if he had, to what extents He admitted Ram Niwas started having his Nikas and Baithaka from the Eastern side. The topography of the land in dispute qua the plaintiff''s house and failure of defendant to point out where the plaintiff had or Dinai had got abadi land towards East, particularly at the time when the Commissioner had gone for local inspection and at that time his failure to pointout that land over which the defendant alleged Dinai to be having his abadi is substantial circumstantial evidence which read with the oral evidence led by the plaintiff and plaintiff''s witnesses i. e. the evidence of the PWs clearly shows that Dinai had the main door on the Northern side and that door had been in existence since long. There beina no dispute that plaintiff had got sahan land and plaintiffs claimed the land in dispute to be their sahan land, while defendant failed to point out plaintiff''s sahan land on any other side and on any other place, this circumstance as subs�tantial evidence gives support and strength to the plaintiff''s evidence that the land in dispute has been the plaintiff''s sahan land. It has been a sahan land of Dinai, the grand father of the plaintiff and defendant No. 2 i. e. respondent No. 2. This being the position of evidence as well as it having come in evidence that the same had been used all through by Dinai during his life time, it stands established from the evidence oral and circumstan�tial that the land in dispute has been the land appurtenant to plaintiff''s house, as it has been used for various purposes and, as such, on the abolition of Zamindari this land in dispute stood settled with plaintiff Dinai, grandfather of the plaintiff and defendant No. 2 and the defendant No. 1 Gaya Deen, respondent had no right to interfere with the plaintiff''s posses�sion and user of the same. It is another thing that sahan of Gaya Deen might be infront of his house towards the North appellant''s house at the place where defendant respondent No. 1''s Chhapper and Baithaka Charahi etc. have been shown in the Commissioner''s map.

Thus considered, in my opinion, in the present case the findings of the Court below suffer from error of law of substantial nature as well as it suffers from an erroneous approach in law as a result of failure to decide the material issue by the Court below i. e. issue No. 5.

I have given my due consideration to the matter involved in the light of the provisions of law under Section 9 of the U. P. Z. A. & L R. Act and the evidence on record led by the plaintiff which finds support from the circumstantial evidence. I do find that the decision of the Court below suffers from error of law of substantial nature indicated above. It appears that plaintiff has proved his case to the effect that the land in dis�pute had been the land appurtenant to appellant (plaintiff) and respondent No. 2''s house and it belongs to the plaintiff and his brother Ram Phal, defendantrespondent No. 2 and defendantrespondent No. 1 had no right to interfere with the plaintiff''s possession over the land in dispute. The defendant had raised illegal construction and, as such, plaintiffappellant is entitled to get the decree for mandatory injunction as claimed directing the defendant to remove the construction illegally raised by him on the portion of land marked by ''abed'' within a period of three months from the date of decision. The decree for permanent injunction is also granted in favour of the plaintiffappellant, directing to the defendantrespondent No. 1 not to interfere with the possession and user of the land in dispute marked by A B C D'' in the Commissioner''s map and lying to the North of the house of the plaintiff appellant and defendantrespondent No, 2.

The appeal is allowed. The suit is decreed for the reliefs as claimed in the plaint with costs throughout.

(Appeal allowed)