JUDGMENT Umeshwar Pandey, J.
1. Heard learned Counsel for the appellant.
2. This appeal challenges the judgment and decree of the lower appellate court dated 17.8.2006 whereby the judgment of the trial court decreeing the appellant plaintiffs suit has been set aside and the appeal had been allowed.
3. The appellant filed a suit for permanent injunction praying to declare the sale deed dated 4.1.2001 executed by the defendant No. 2 in favour of the defendant No. 1 as null and void and to restrain the defendant No. 1 from causing any interference in plaintiffs possession over the disputed land. During the pendency of the suit another relief of mandatory injunction praying for demolition of construction raised in the land by the defendant No. 1 has been added. The plaintiff appellant claims himself the owner of the property ABCD shown in the plaint over which he used to have his old house, which had become dilapidated. Initially it was alleged to be an open land after the plaintiffs house had fallen down. Later on by amending the plaint, plaintiff added another new para 6A in the plaint stating that the defendant No. 1 had illegally in collusion with the local police raised construction of a room in the disputed land entitling the plaintiff for relief of its demolition. The suit was contested and the defendant No. 1 stated that he got the land in question transferred by the defendant No. 2 through impugned sale deed. The ownership of the plaintiff is denied and it was further claimed that he obtained possession of the property from the defendant No. 2 on execution of the aforesaid sale deed. It was further pleaded that he had every right to raise construction over the disputed land. The defendant No. 2 also filed his written statement stating certain otherwise facts and pleading inter alia that the sale deed in question was got executed from him by the defendant No. 1 keeping him in dark regarding transfer of the said land. In fact, he had agreed to transfer his property indicated by EFGH in the plaint map. He was not owner of the disputed property ABCD.
4. On the pleadings of the parties, the trial court framed as many as eight issues arid recorded its finding holding that the sale deed in question was got executed by the defendant No. 1 from the defendant No. 2 under mistaken impression and that the property in question is a property belonging to the plaintiff. The suit was thus, decreed and both the reliefs claimed in the plaint were granted.
5. The lower appellate court after hearing both the parties was of the view that since the appellant plaintiff had agreed for relief of demolition of certain construction alleged to have been raised in the disputed land by the defendant, he has not indicated its extent in the plaint map nor he has got any scale map of the property prepared for the said purpose, which could be said to be a guideline for granting the decree of demolition. The lower appellate court also did not find it proper to grant the declaratory relief in respect of disputed sale deed. Accordingly, the appeal was allowed and the judgment and decree passed by the trial court has been set aside by the impugned judgment.
6. Learned Counsel for the appellant while placing his submissions has emphasized that since the defendant No. 2, who is said to be transferor of the disputed land in favour of the defendant No. 1, himself disclaims his ownership over the said property and says that the property was got transferred under mistaken impression by the defendant No. 1, the suit in all fairness should have been decreed by the lower appellate court itself. The property is owned by the plaintiff and since the defendant No. 2 had no right to transfer the property, no title would accrue in favour of the defendant No. 2 by virtue of the impugned sale deed. It is further submitted that since no additional written statement has been filed from the side of the defendant No. 1 after the relief of demolition was added in the plaint, it should be taken as admission of the said defendant respondent and there was absolutely no legal hitch in granting the same by the court below.
7. From the aforesaid facts and circumstances and the judgment of the lower appellate court, it is found that the plaintiff appellant while amending the plaint and pleading about certain encroachments in the property ABCD of the plaint map, did not take trouble to precisely show those illegal constructions, which are sought to be demolished. Later on also the plaintiff has not obtained any scale map of the spot showing the exact position of the encroachments in the disputed property. Therefore, when there is no proof of establishing identity of the disputed constructions over the land in suit, no decree for demolition of the same is possible in the eye of law. The lower appellate court has very rightly rejected that relief and the judgment so rendered in that context appears to be wholly justified.
8. As regards the claim of ownership of the plaintiff over the disputed land even though it is admitted by the defendant No. 2 in the written statement yet it cannot be said that by such admission the claim of the defendant No. 1 would stand wholly demolished. The defendant No. 2 had executed the sale deed and as per the judgment of the court below, there was, no reliable material made available on record showing that the sale deed in question was executed by the defendant No. 1 under mistaken. impression. The property in suit is an abadi property and no documentary evidence is available in support of claim of title of the respective parties over the same. Therefore, after making due appreciation of the evidence, which is only factual, if the lower appellate court has reached at a conclusion that it was the defendant No. 2, who originally owned the property, that finding of fact cannot be disturbed in this second appeal.
9. In the aforesaid view of the matter and In the prevailing facts and circumstances, I do not find any merit in this appeal, which fails and is hereby dismissed at the admission stage.