JUDGMENT Prakash Krishna, J.
1. This is defendant's appeal. It arises out of Original Suit No. 418 of 1970 filed for mandatory injunction in respect of a piece of land marked as E.F.G.O. in the map attached to the plaint.
2. The plaintiff respondents filed a suit for demolition and injunction on the allegation that Plot No. 605 belongs to plaintiffs' father and uncle, etc. The area one Bigha five Biswas of the said plot belong to the plaintiffs' father. The plaintiffs and his collaterals are in occupation of the said plot. The said plot is also recorded in the revenue record in the name of the plaintiffs. A lease of one biswa area was granted on 2.1.1951 to Sri Kedar Lal (Originally the defendants who died during the pendency of the suit) Sri Kedar Lal built a house over it. The defendant Kedar Lal started making construction over a piece of land towards east which was not leased out to him in June 1970 and failed to stop the work inspite of protest from the plaintiffs. Consequently, the suit for possession and mandatory injunction directing the defendants to remove the construction and to restore the land to its original state was filed.
3. Sri Kedar Lal who died during the pendency of suit did not dispute that the plaintiffs are owners and bhumidhars of Plot No. 605. He pleaded that the disputed construction do not fall in Plot No. 605 vide para 18 of the written statement and he has perfected his title by adverse possession. He also raised the plea of estoppel and acquiescence.
4. The trial court dismissed the suit by its judgment and decree dated 26.4.1979. The said decree has been reversed in Civil Appeal No. 145 of 1979. Aggrieved against the reversal of decree by the 1st Appellate Court, present appeal has been filed by the heirs of Sri Kedar Lal, defendants.
5. At the time of admission of appeal the Court expressed its satisfaction that the appeal raises following questions of law as mentioned in the memo of appeal :
(i) Whether the lower appellate court was justified in passing a decree for demolition without any survey map on the scale locating the exact area of the disputed land and the disputed construction?
(ii) Whether the decree passed by the lower appellate court is totally vague, uncertain and unexecutable.
(iii) Whether the description of the land given in the site plan at the foot of the plaint and evidence did not tally with each other and the plaintiffs were not entitled to any decree for demolition?
6. Heard learned counsel for the parties and perused the record.
7. It was contended by Sri Sankatha Rai, learned counsel for the appellant that the lower appellate court was not justified in passing the decree for demolition without any survey map on the scale locating the disputed plot. He has placed reliance upon a judgment in the case of Barasati and Ors. v. State of U.P. and Anr., JT 2000 (7) SC 350, The trial court on the finding on issue No. 2 dismissed the suit that the plaintiffs should have got issued a Survey Commission so as to locate existence of the disputed construction on Plot No. 605 or beyond it. The appellate court has reversed this finding. Now the question arises whether the lower appellate court, in the facts and circumstances of the case was justified in deciding the appeal in the absence of a survey report. The first appellate court was conscious about the fact that no local investigation and survey was done to determine Khasra number in which the land in dispute lies. In this connection it is relevant to give few facts, which emerges from the record. Initially the plaintiffs along with the plaint filed a rough sketch map of the site plan. It was not on scale. The said sketch map was with regard to the spot position of the disputed land along with other existing construction, such as Tehsil, road, Station Road, house of the plaintiffs, building of the Municipal Board, and house of the defendants etc. In the plaint the disputed land was described by letters in Devnagri script and was shown by red colour. The trial court was not satisfied with the said sketch map and directed the plaintiffs to file a map on scale of plot No. 605. The plaintiffs in consequence of the order of the trial court filed a map on scale of plot No. 605 of village Tarkapur Tappa, Chaurasi Pargana Kantit, district Mirzapur. The plaint was also amended. The amendment application is paper No. 80-C/Ka. The said amendment was allowed. Para number 7A was incorporated in pursuance of the order dated 19.3.1979 and other amendments were carried on in the plaint. As a result of amendment of the plaint the letters E, F, G and O described the disputed property. The defendants were permitted to file additional written statement and the same was filed on 22.3.1979 being Paper No. 84/Ka. In the additional written statement only this much has been pleaded that the map on scale is incorrect and there is a lot of discrepancies in between the map filed along with the plaint and the map now filed on scale. The parties thereafter examined the witnesses in the trial court. The defendants' witnesses and specifically Sita Ram, D.W. 2 admitted in his deposition that the land in dispute lies in Plot No. 605 of village Tarkapur. The sketch map on scale being Paper No. 80-Ka/III was placed before the witness Sita Ram. Sita Ram has admitted that the sketch map being Paper No. 80-Ka/3 is in accordance with the spot position. He has further admitted that the entire land lying in between the house of Moti to Octroi outpost (Chungi) belongs to the plaintiffs. A perusal of the sketch map, which is according to the defendant's own witness is correct, shows that the disputed land E, F, G and O lies in between house of Moti and Octroi outpost (Chungi). The lower appellate court has placed reliance upon the statement of defendants' witness D.W. 2. The reliance placed by the lower appellate court on the statement of defendant's witness cannot be said to be unwarranted. No attempt has been made by the defendants to explain the said admission of D.W. 2. The trial court was clearly in error in omitting to consider the said part of the statement of D.W. 2 and the appellate court has rightly corrected the mistake committed by the trial court. It was not argued that the appellate court has misread the statement of D.W. 2. It has not been argued that the intention of the witness was something else. In view of unequivocal statement of D.W. 2 the case of the plaintiffs that the disputed land lies in Plot No. 605 is fully established.
8. The only point, which was submitted by the learned counsel for the appellant, was that the plaintiffs can succeed on the strength of their evidence and cannot rely upon the weakness of title of the defendant. For this proposition he has placed reliance upon a judgment of Supreme Court in the case of Maran Mar B. Catholics and Anr. v. Mst. Rev. Mar. Poulse, AIR 1954 SC 526, Great emphasis was laid on paragraphs 33 and 35 of the judgment. The Supreme Court in the said case has observed that the plaintiffs in ejectment suit must succeed on the strength of his own title and a mere destruction. The defendants' title in absence of establishment of his own title by the plaintiffs, carries nowhere. The said case is distinguishable and has no application to the facts of the present case. In the case in hand, the plaintiff is not relying upon the destruction of title of the defendants. The plaintiffs have established their title and for the purposes of location of the disputed construction on land are entitled to rely upon the statement of defendants' witnesses. The plaintiffs have pleaded their title with respect to plot No. 605 in para 1 of the plaint the said para has been specifically admitted by the defendant Kedar Lal, in para 1 of the written statement. There was no dispute between the parties that plot No. 605 does not belong to the plaintiffs. The only issue was as to whether the disputed land is part of plot No. 605 or not. The plaintiffs have established the same by filing scale map of plot No. 605 and giving exact location of the construction raised by the defendants. The defendants' witnesses have accepted the correctness of the scale map as well as spot position of the disputed land. Thus, it cannot be said that the plaintiffs are basing their title and right on the defect of the defendant's title. In view of the fact that the map of the spot and of plot No. 605, on scale was filed and it was not disputed in evidence there was no necessity to issue Survey Commission. The object of obtaining a survey report is to locate the construction with reference to plot number. The only issue between the parties was as to whether the disputed constructions lie in plot No. 605 or not. The D.W. 2 has located it and also that the sketch map filed by the plaintiff is correct, in his deposition.
9. Reliance placed by the learned counsel for the appellants on the judgment of Supreme Court in the case of Barsati and others (supra), is misplaced one. The identity of the land in dispute in the case in hand is fully established and as a matter of fact was even admitted by the defendants' witnesses. The defendants did not produce any witness to show that the disputed land lies in any other plots. The defendants have not given plot number in which the disputed land lips. Therefore, the findings of the court below are perfectly legal and do not suffer from any error of law or fact and the court below was right in not issuing the Survey Commission.
10. Now I take up second substantial question of law as to whether the decree passed by the lower appellate court is vague, uncertain and unexecutable. The said question appears to have been framed due to ignorance of the amendment, which was carried on in the plaint. It was submitted by the learned counsel for the appellants that in the plaint as well as in the Map annexed with the plaint, the disputed property was described by the letter in Devnagri script Ta, Tha, Ja, Jha, Ba, Cha, Ga, Ja, Va, Ja, Cha, Ja and Pha. He made a reference to operative portion of the judgment of 1st appellate court. In the said operative portion it has been mentioned that the plaint map indicating the land in dispute by letters E, F, G and O shall form part of the decree. The defendants were allowed a months' time to remove the construction from the land in dispute failing which the defendants may get them removed through Court. The appellant tried to make out capital of it as in the operative portion the disputed land has been described by letters E, F, G and O while in the unamended plaint it was described by letters of Devnagri script. The plaint having been amended and the map on scale has been submitted by the plaintiffs, it cannot be said that the decree passed by the lower appellate court is vague or uncertain or unexecutable. Once plaint has been allowed to be amended, the unamended portion cannot be taken into consideration. The question No. 2 sought to be raised legally and factually has no merit and is liable to be decided against the defendants.
11. The third question sought to be raised in the appeal is part of question No. 2. Same arguments were raised as were raised with respect to question No. 2. It appears that the appellants were labouring under some confusion. The plaint was amended and the plaintiffs filed the scale map in pursuance of the order passed by the trial court. The scale map has been made part of the decree, and the question No. 3 sought to be raised has no substance.
12. Great emphasis was laid by the learned counsel for the appellant that the plaintiffs have admitted that they are owner and in possession only one biswa of land of plot No. 605 and rest of the land has been sold away. Therefore, the plaintiffs have first to get their land located in plot No. 605. The said argument has no merit and is devoid of substance. There was no issue-between the parties as regards the ownership of plot No. 605 is concerned. In the earlier part of the judgment it has been pointed out that title of the plaintiffs over plot No. 605 was specifically admitted by the defendants in para I of the written statement. There being no issue between the parties regarding the title of plot No. 605 the appellants cannot be permitted to raise a new plea and go against their pleadings. It may be noted here that the said point was sought to be raised by the appellant in the memo of appeal, but no substantial question of law was framed by the Court on this point at the time of admission of the appeal.
13. In view of the above, the appeal is devoid of substance and is accordingly dismissed with costs.