JUDGMENT N.K. Mehrotra, J.
1. This is an appeal against the judgment and decree dated 15.9.1981 in Civil Appeal No. 44 of 1979 passed by IIIrd Addl, District Judge, Barabanki reversing the judgment and decree dated 28.4.1979 in Suit No. 99 of 1973 passed by Munsif, Ram Sanehi Ghat, district Barabanki.
2. I have heard Shri P.N. Mathur for the appellants and Shri U. S. Sahai holding brief of Shri H. S. Sahai for the respondents.
3. It appears that plaintiff Vishnu Sharma filed a suit for possession claiming that a parcel of land at about 5 ft. in width which was being used by him for passage and which had his door way may be restored to him by demolition of a wall raised by the defendants. The case of the plaintiff was that the parties to the suit belong to the same family. One Shanker Mishra was their common ancestor. Shanker Mishra had two sons Beni Deen and Ram Bharosey. Beni Deen had three sons Sita Ram, Ram Sanehi and Murli Ram. Sita Ram had died issueless. Ram Sanehi had three sons ; Surya Prasad, Kamlapati and Bishnu Sharma. Kamlapati Rarn had one son Hari Saran. Vishnu Sharma is the plaintiff in the case and Hari Saran is the defendant. Murli Ram had two sons Rameshwar and Ram Gulam. Beni Deen's brother Ram Bharosey had two sons Kanahiya Lal and Devi Dutt. Devi Dutt had died issueless whereas Kanahiya Lal had one son Bacchu Lal . The said Bacchu Lal is the defendant appellant No. 1 and the defendant appellant Nos. 2 to 5 are his sons. The plaintiff alleged that a house which included a cattle shed, ahata and sahcm was owned by Shanker Mishra. This house was situated in abadi plot No. 244. In the plaint map, the disputed property has been shown by letters A to H and QRFGH and KLPMNO which was situated in abadi plot Nos. 244, 243 and 241. Plot No. 244 belong to Shanker Mishra ; plot No. 243 alongwith the house and sahan belonged to Avadh Bihari and Ram Sagar sons of Bisheshwar and plot No. 241 belong to Beni Deen and Ram Bharosey. There was a partition between Ram Bharosey and sons of Beni Deen detailed in the plaint in which the house bounded by letters ASTBUH and OPMN fell into the share of Ram Bharosey and the house bounded by letters ABCDEFG and KLPO fell into the share of sons of Beni Deen. Sita Ram son of Beni Deen died issueless and thereafter a partition took place between Ram Sanehi and sons of Murli Ram. Rameshwar and Ram Gulam sons of Murli Ram got into their share the house bounded by letter SBCXWT. Ram Sanehi got into the share the house bounded by letters VXWCDEFG and house bounded by letters KLPO. Rameshwar and Ram Gulam also had a partition and started living separately. Rameshwar sold his share later on to Smt. Mansha Devi. She is still in possession of the purchased share of Rameshwar. In the partition between Ram Bharosey and sons of Beni Deen, a piece of land about 5 ft. wide east west bounded by letter Q1QHH1 was given to the sons of Beni Deen for passage and sitting purpose. This passage land was initially given by the ancestor of Ram Sagar and in the partition between Ram Sanehi and sons of Murli Ram, it fell into the share of Ram Sanehi. The house of Shanker Mishra was situated in abadi plot No. 244. Partition between Ram Bharosey and sons of Beni Deen took place about 100 years ago. The sons of Beni Deen were minor in that partition. Ram Bharosey retained the house for his own share whereas he gave the cattle shed, ahata and sahan in the shares of the sons of Beni Deen. The cattle sheds and ahata opened towards west. Door of Avadh Behari and Ram Sagar opened towards north and it reached upto the door of cattle sheds and ahata given into the hare of sons of Beni Deen. Therefore, Ram Bharosey gave 5 ft. wide land to the sons of Beni Deen. Ram Sanehi constructed a chabutara on this land. The plaintiffs' father Ram Sanehi reconstructed his own share in the compound and mortgaged it with Changa Lal on 15.9.1928 and on 3.10.1930, Ram Sanehi executed a deed in favour of Changa Lal relating to the southern share in plot No. 241. Ram Sanehi died in the year 1930. Sarju Prasad son of Ram Sanehi also died issueless. Plaintiff was minor at that time. He redeemed the ahata in abadi plot No. 241 on 24.12.1947 which was mortgaged by Ram Sanehi. The construction in abadi plot No. 244 fell down in due course of time. Plaintiff purchased abadi plot No. 243 from Avadh Behari and Ram Sagar through a registered sale deed dated 7.6.1955. Avadh Behari and Ram Sagar had one step brother Gir Raj. His share in the house and the sahan in plot No. 243 was purchased by Vireshwar, his own father. After accepting compensation for his share, Gir Raj abandoned his claim of 1/3 share in abadi plot No. 243. After that plaintiff and Kamlapati had a partition. The plaintiff took plot No. 244 in his share. He included plot No. 243 and plot No. 244 and raised construction in both the plots. The plaintiff had been in possession over the said property in that manner. Bachoo Lal defendant constructed a wall after removing the chabutara of the plaintiff. In spite of the notices, the defendant did not remove the construction of the wall. It is alleged that the defendants Nos. 1 to 5 thus illegally occupied 5 ft. wide land bounded by letter Q1QHH1. Plaintiff filed the suit for permanent injunction against the defendant for restraining from interfering in the possession of the plaintiff over sahan land detailed by letters QlHlYlKha. Plaintiff also filed a suit for possession over the land on which the defendants had raised their construction.
4. The case of the defendants is that there was no partition between the Kamlapati Ram and the plaintiff. Kamlapati Ram and the plaintiff jointly redeem the property detailed in the plaint. The plaintiff raised the constructions in plot Nos. 243 and 244 out of the resources belonging to the joint family. It is alleged that plot No. 243 was purchased from joint family funds and there was a partition between the sons of Beni Deen and Ram Bharosey. There is a sahan darwaza towards west in the house of Ram Bharosey and Beni Deen at its sahan darwaza towards east. The sons of Murli and Ram Sanehi had effected partition. The southern share in the house was given to Ram Sanehi and northern share in the house was given to the sons of Murli Ram. Sons of Murli Ram had also effected a partition. The southern portion went into the share of Ram Gulam and northern portion went into the share of Rameshwar. Now Smt. Maheshwari had been in possession over the share of Rameshwar. Shanker Mishra the common ancestor had two ahataas and they were also partitioned between Ram Bharosey and sons of Beni Deen. The ahatas in the west was divided into two portions, the northern share was given to the sons of Beni Deen and southern portion was given to Ram Bharosey. The eastern ahata was also divided into two portions, the eastern share was given to Ram Bharosey and western share was given to Beni Deen. Ram Gulam and Ganga Saran wanted the eastern share of ahata of Ram Bharosey. Bachoo Lal denied that request. Therefore, this suit has been filed. It is also alleged that 5 ft. wide lane was left in the south of the east of Ram Bharosey. There was a door in that and belonging to the sons of Beni Deen. Ram Bharosey and sons of Beni Deen used the door. When plaintiff and Kamlapati Ram purchased the house of Avadh Behari and Ram Sagar, then they included 5 ft. land in their use with the consent of Bachoo Lal . They also opened a door at point 'N' shown in the sketch map attached with the written statement with the consent of Bacchu Lal . However, that door did not confer any right to the plaintiff in any manner. It is also contended that, the suit was beyond time and that the defendants Nos. 1 to 5 have perfected their title by adverse possession on the disputed land.
5. Following issues were framed by the trial court :-
"(1) Whether the suit is liable to be stayed under Section 10/151, C.P.C.?
(2) Whether the suit is bad for multifariousness?
(3) Whether the suit is undervalued and court fee paid is insufficient?
(4) Whether the plaintiff is the owner of the land in suit as alleged in paras 1A, 8 and 9 of the plaint?
(5) Whether the share of Sri Giri Raj in the house and sahan situate on plot No. 243 was relinquished in favour of Sri Awadh Behari and Ram Sagar as alleged in para 8 of the plaint, if so, its effect?
(6) Whether Awadh Behari and Ram Sagar sold the house and sahan situate on plot No. 243 by executing sale deed dated 7.6.1955 in favour of the plaintiff?
(7) Whether the defendants are estopped from challenging the sole ownership rights of Sri Awadh Behari and Ram Sagar and also of the plaintiff in house No. 243 and its sahan as alleged in para 8 of the plaint?
(8) Whether the defendants have taken illegal possession of the land in the suit as alleged in paras 12 and 13A of the plaint?
(9) Whether the plaintiff and Kamlapati Ram had opened a door with the permission of Bachchoo Lal as alleged in para 34 of the written statement?
(10) Whether defendants 1 to 5 are the owners of the land in suit by adverse possession as alleged in para 37 of the written statement?
(11) To what relief, if any, the plaintiff is entitled?"
6. It was held by the learned Munsif that Gir Raj did not relinquish or abandon his share in plot No. 243 and the plaintiff was only owner of 2/3 share of the disputed property. It was also held that 1/3 share in the said property belong to defendant No. 5 because of a sale deed executed by Gir Raj in favour of the defendant No. 5. It was further held that the land in question fell in plot No. 244 which belonged to the ancestor of Bachoo Lal defendant and the said defendant did not encourage that land. It was also held that defendant No. 5 was a co-sharer in the disputed property and therefore, he could not perfect his title by adverse possession. After recording these findings, the suit of the plaintiff was dismissed.
7. The plaintiff filed appeal against that judgment before the District Judge and the appeal has been allowed by impugned judgment dated 15.9.1981. The suit of the plaintiff has been decreed with the direction that the defendants shall remove their construction from the disputed property bounded by letters QQ1H1HQHYKha and for possession of the vacant land to the plaintiff. There has been a partition between Ram Bharosey and sons of Beni Deen. A 5 ft. wide land was left in the south of the share given to Ram Bharosey in the partition between him and sons of Beni Deen. This 5 ft. wide land was used by the sons of Beni Deen. They had a door on this land. Ram Sanehi the father of plaintiff and sons of Murli Ram also had a partition. Ram Sanehi continued to use the land towards the west of his house as usual. After the purchase of the house of Avadh Behari and Ram Sagar the plaintiff included this 5 ft. wide land in the south of the share of Ram Bharosey in his own house. A door was kept thereafter towards west for passage of the house. The opening of the door was made with the consent of Bachoo Lal. The door at point 'N' in the sketch map attached to the written statement exactly falls in the wall H1H shown in the sketch map attached with the plaint. The survey map 26-C also showed a door exactly at that place.
8. At the time of deciding the appeal, the learned Ist appellate court recorded the finding of facts as stated hereinafter.
9. There are certain admitted facts as per the averments in the written statement as referred by the learned Ist appellate court. According to the sketch map attached with the plaint, written statement and the survey map 26-C, the door existed for the plaintiff which opened towards the west of the wall H1H. The constructions in dispute shown by letters QQ1H1H closed this door of the plaintiff and obstructed the passage of the plaintiff towards the west of his house the construction in the west of the wall H1H lay on open piece of land which could be used only for passage purpose. The closure of this door through the impugned constructions was unjust and improper. The defendants Nos. 1 to 5 could not claim that these constructions bounded by letters Q1H1H were old enough to bar the suit on the ground of limitation for the simple reason that the dispute between the parties arose only after the sale deed by Gir Raj in favour of the defendants Nos. 1 to 5 in the year 1972. The impugned constructions blocked the remaining door towards the west in the plaintiff house. A 5 ft. wide land in plot No. 244 was left at the time of partition between Ram Bharosey and sons of Beni Deen for the purpose of passage to the portion of the property given in the share of the sons of Beni Deen. The plaintiff had been using the lane of 5 ft. wide in plot No. 244 in the south of the house of Ram Bharosey for the purpose of going towards west of his use the portion of the disputed property shown by letter QHYkha in the sketch map attached to the plaint letter in plot No. 243. Plot No. 243 had a house of one Bisheshwar who had been the owner of the entire plot No. 243. He had three sons Gir Raj, Avadh Behari and Ram Sagar. It has been settled that the plaintiff purchased this property from Avadh Behari and Ram Sagar through sale deed dated 7.6.1955 out of his own resources and Gir Raj had abandoned his share after taking possession of his share. Besides the house of Bisheshwar, there were other property belonging to Bishweshwar in which Gir Raj never claimed any share and the dispute arose only for the first time in the year 1972 when he executed the sale deed in favour of the defendant No. 5 showing his 1/3 share in the house only. Gir Raj had no share in plot No. 243 and defendants No. 1 to 5 purchased only litigation from Gir Raj through sale deed executed by him in 1972. The documents on record do not support the defendants against the aforesaid conclusions. After recording these findings, it has been held by the first appellate court that it is established that the plaintiff had been in possession over the disputed property lying in the west of his house. The defendants No. 1 to 5, dispossessed the plaintiff in 1972 for the first time on the basis of the illegal sale deed by Gir Raj after abandoning his share.
10. Aggrieved by the impugned judgment of the Ist appellate court, this second appeal has been filed. At the time of admission of appeal on 17.11.1981, no substantial question of law was formulated but at the time of hearing, the learned counsel for the appellant fairly conceded that only following substantial question of law as stated in the memo of appeal can be formulated for decision of the second appeal :
"Whether inference drawn by the lower appellate court that the wall was causing obstruction in the exercise of right of the plaintiff to the land, is perverse as it results in manifest and glaring Injustice."
11. I have heard the learned counsel for the parties only on the aforesaid question of law formulated before the start of the hearing.
12. As said above, the Ist appellate court has recorded a specific finding after keeping in view the sketch map attached to the plaint, sketch map attached to the written statement and the survey map 26C that the disputed construction raised by the defendants obstructed the passage of the house of the plaintiff. This finding of fact is based on the evidence on record. The other findings have not been challenged. The finding that the disputed wall is causing obstruction in the right of passage of the plaintiff being a finding of fact supported by evidence on record cannot be interfered in second appeal.
13. Learned counsel for the respondent has argued that the finding is not perverse in any way. The learned Ist appellate judge has discussed the entire evidence adduced by the parties and after discussing the spot situation with the map filed by both the parties and the survey map. The learned appellate judge has come to the conclusion that the disputed wall obstructed the passage of the plaintiff and this obstruction has been created in the year 1972 after getting the sale deed from Gir Raj who had already abandoned his share in the year 1955 when his two step brothers had executed the sale deed of the entire house in favour of the plaintiff and after getting the sale deed the ancestor of the plaintiff had constructed the house by including the land of plot No. 243 in plot No. 244 and a door was also opened that time towards the disputed land and upto 1972 no objection was raised by the defendants.
14. In Thaigrajan and Ors. v. Shri Venugopalan Swami E. Koil and Ors., , it was held by the Apex Court that the scope of re-appreciation of evidence in second appeal is very limited and the High Court cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. Learned counsel for the appellant has argued that the suit was not required to be decreed because there was no obstruction at all in the passage of the plaintiff by the disputed construction but in view of the finding of fact based on the spot situation supported by the maps on record this finding about the obstruction recorded by the first appellant court cannot be interfered in the second appeal.
15. In view of the above, this second appeal is dismissed with cost to the respondent.