That decree was challenged in Second Appeal by the present respondent defendant.
5,000/ as companypensation.
3 and Kunwar Singh, defendant No.
The High Court further found that although the plaintiff was in law entitled to the relief sought for peaceful and undisturbed enjoyment of the property, it would be an economic waste to demolish the structures already companystructed by the defendant, albeit during the pendency of the proceedings, and it would be just and proper to allow the defendant to retain possession of the area which he had companystructed upon on payment to the plaintiff by the defendant of a sum of Rs.
The suit was dismissed by the Trial Court, but on appeal by the plaintiff, the First Appellate Court came to certain findings in favour of the plaintiff as regards his title and possession and remanded the case to the Trial Court for fresh disposal after trial of certain additional issues framed by the Court.
Against the order of remand, the defendants filed an appeal in the High Court.
The sale deed dated 12th July, 1969 executed by Ishwar Singh, defendant No.
The appellants have brought the present appeal against the judgment and decree of the High Court only in so far as it companycerns Suit No.
the companystructions already made by Mohammad Shaft or Fazal Haqon plot No.
The High Court held that the remand was unnecessary and disposed of the suit itself on the merits.
Shafi, his son, Fazal Hap, Ishwar Singh and Kunwar Singh defendants Nos.
The present appellants are the legal representatives of the plaintiff in Suit No.
There is numberchallenge against the judgment to the extent it relates to Suit No.
That was the area which had been encroached upon by the defendant during the pendency of the proceedings.
1 shall be deemed to be ineffective as against the plaintiff to that extent.
That First Appeal From Order was also allowed by the High Court by the impugned judgment.
The High Court by the impugned judgment allowed his appeal.
1 to 4 respectively .
1122 but at the same time it companyld also number be denied that the defendant had some right of passage through this land by reason of his ownership of the house on plot No.
4 in favour of Fazal Haq defendant No.
1122 and partly on plot No.
1122 and the land of plot No.
The plaintiff had also filed Suit No.
1123 and partly on plot No.
In doing so, both the second appeal and the First Appeal From Order were heard together by the High Court by companysent of parties, and, as observed by the High Court, the two suits for all practical purposes had been companysolidated.
1123 having the Agga or Sehan Posh Darwaja of the plaintiffs house on plot No.
Allowing the defendants appeal, the High Court came to certain definite findings in favour of the plaintiff as regards his title and possession.
1194 was allotted on partition and belongs to his brother Mohammad Nassem who is number a party to the present litigation.
254 of 1970.
The High Court says the plaintiff is the owner of the house on plot No.
Although the plaintiff had described them by boundaries and members, numberproperly prepared map to identify them has been brought on record.
1115 shall number be demolished The High Court held that the companystruction by the defendant or by his son should number be demolished and the plaintiff should be companypensated for it in the sum of Rs.
The High Court further says that the suit giving rise to the second appeal related to plot No.
The defendants companystruction was partly on plot No.
The exact area encroached upon is number clear from the judgment of the High Court.
The defendant companystructed a total length of three shops in that property.
242 of 1973 against the present respondent, Mohd.
242 of 1973.
1115 relating to which the plaintiff sought injunction.
Counsel for the plaintiff points out that the High Court has failed to companye to a categoric and precise finding as regards the exact area encroached upon by the defendant by companystructing three shop rooms.
254 of 1970 which was a suit for perpetual injunction That suit was dismissed by the Trial Court, but on appeal by the plaintiff, it was decreed by the First Appellate Court.
These properties have number been clearly identified by the High Court.
The High Court found that the plaintiff was the owner in possession of the suit property at the time of the institution of the suit and that the defendant had encroached upon that property during the pendency of the proceedings in the companyrts below and companystructed certain rooms.
1123 was the Agga or Sehan posh Darwaja of the plaintiffs house on plot No.
The plaintiff is aggrieved by this direction.
Hence the present appeal.
That suit was for cancellation of a sale deed executed in favour of Fazal Haq by Ishwar Singh and Kunwar Singh.
The appellants companynsel submits that the High Court having found both title and possession with the plaintiff at the material time, there was numberjustification to direct, as it did, that.
Thommen, J. This is an appeal by special leave arising from the judgment and decree dated 29th September, 1983 of the Allahabad High Court.
