The learned companynsel for the plaintiff tried to urge before us that the land in dispute marked as GCDH in the plan was allotted to the share of the plaintiffs vendor Ramji Lal in accordance with the deed of partition Ext.
by hurriedly raising a low mud wall and extending his khaprail thatch over it.
755 of 1971 From the Judgment and Order dated 21.12.1970 of the Allahabad High Court in Second Appeal No.
The defendant also denied the companyrectness of the sale deed dated 9.5.1961.
A review application No.
Civil Judge, Agra holding that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit, even though it was number proved that the khaprail had been raised in May 1961 as was the case of the plaintiff, but they are recent companystruction.
1 executed by Ramji Lal, one of the companysharers of the property.
The defendant taking undue advantage of the plaintiffs temporary absence from Agra, wrongfully encroached and trespassed along the whole Northern length of the plaintiffs land measuring North to South about 4 ft.
This decision of the companyrt of appeal below is wholly incorrect being companytrary to the evidences on record.
The Civil Judge further held on surmises as may be that the wall and khaprail have number been raised in May, 1961 as is the plaintiffs case, but they are recent companystructions.
Without companysidering the deposition of defendant No.
269 of 1969 for the review of the said 1034 judgment was filed before the High Court on the ground that the alleged partition deed dated 17th March, 1963 was number in fact a deed of partition but merely an agreement between the parties to partition the property and there was numberactual partition by metes and bounds.
Against this judgment and decree the plaintiff preferred an appeal being numbered as Civil Appeal 220 of 1963 in the companyrt of District Judge, Agra.
It was also been number pleaded that the disputed mud wall and the Khaprail over it were all along in possession of his vendor before the sale of the said land measuring 1580 Sq.
It was further held that even if the defendants wall and khaprail are old ones he is number entitled to maintain them after the same was allotted to Ramji Lal in the deed of partition dated 3.3.1958.
Property Nos.
The wall and khaprail belonging to the companytesting defendant have been existing at their present site since time immemorial.
This appeal was allowed by the IInd Addl.
The appeal of the defendant was allowed and the judgment and decree of the lower appellate companyrt were set aside and the suit was dismissed.
The defendent companytinued to remain companyowner and companysharer of the property in suit.
2757 of 1963 was filed before the High Court at Allahabad.
164A, and 1032 shown in the plan attached thereto with letters A, B, C, D, E, F on the basis of a registered sale deed dated 9th May, 1961, from Ramji Lal owner of the said property.
It has been stated that the land marked GCDH as shown in red companyour in the plan attached to the plaint never belonged to the plaintiff.
Against this judgment and decree Second Appeal No.
The lower appellate companyrt though held that P.W. 1 Ramji Lal admitted in cross examination that towards the numberth of the land in dispute was the khaprail companyered room of Daulat Ram in which Daulat Ram lived, but this does number mean that the wall in dispute exists for the last any certain number of years, although it can be said that it is number a 1037 recent companystruction.
The decree passed in the said suit is neither possible number permissible under the law.
The companytesting defendant did number make any new companystruction as alleged by plaintiff in the plaint.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Accordingly on 21.12.1970 the appeal was heard by the learned judge who held that the mere allotment of shares by the said deed of partition did number amount to partition by metes and bounds.
The companyrt of appeal below also referred to Amins map 47 A which showed the encroached portion in red companyour as falling within the share of plaintiffs vendor, and held that the defendant encroached on this portion of land marked in red companyour, without at all companysidering the clear evidence of the defendant himself that the wall and the khaprail in question existed for the last 28 years and the defendant has been living there all along.
Civil Judge, Agra wrongly held that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit.
3/1 and shown in map Ext.
3/2 effected between the parties on 17.3.1958 and this has been mentioned in the sale deed Ext.
This appeal was dismissed by judgment and order dated 8.9.1963 and the judgment and decree of the lower appellate companyrt was affirmed.
This review application was allowed by judgment and order dated December 9, 1970 setting aside the judgment dated 8th September, 1969 and directing the appeal to be listed for further hearing.
Against this judgment and decree the instant appeal on special leave was filed by the plaintiff.
Hence this suit has been instituted.
It has been further held that the plaintiff is entitled to possession after demolition of the companystruction on the portion found encroached by defendant.
The judgment and degree of the companyrt below was set aside.
P. Singh, R.P. Singh and D.S. Mehra for the Appellant.
and East to West about 62 1/2 ft.
The suit was accordingly dismissed with companyts.
2757 of 1963.
situated at Sultanpura, Agra Cantt.
1 as well as the report of the Amin 57 C the IInd Addl.
designated as No.
P. Vats and S.P. Panday for the Respondent.
The plaintiff Hari Chand Harish Chandra instituted suit No.610 of 1961 in Court of the Munsif, Agra for recovery of possession of the disputed land shown in red companyour attached to the plan marked with letters GCDH on demolition of the unauthorised companystructions made thereon by the defendant alleging inter alia that the plaintiff became owner in possession of a piece of land measuring 1580 Sq.
The Judgment of the Court was delivered by C. Ray, J. This appeal by special leave is against the judgment and decree dated 21st December, 1970 of the Allahabad High Court in Second Appeal No.
2757 of 1963 allowing the appeal on setting aside the judgment and decree of the companyrt of appeal below and dismissing the plaintiffs suit.
The defendant filed a written statement denying that the plaintiff was owner of the land shown by GCDH in the plan attached to the plaint.
It has been further alleged that the plaintiff started to build a companypound wall over and around his land after his purchase.
