Heard learned counsel for the appellant on the point of admission of second appeal and perused the records.
Admittedly, the plaintiffs' father has purchased 85 x 30 ft. land of plot no. 371/1 from defendant's father. For this plot of abadi, plaintiffs had filed suit against defendant which was decreed by the trial court's judgment dated 30.09.2010. In this judgement, trial court had also directed the defendants to remove the construction of 11 X 30 ft. portion of land present over it and handover its possession to plaintiffs.
Defendants had filed civil appeal no. 48 of 2011 against the judgement of trial court, which was allowed by the judgement dated 28.1.2016 of Additional District Judge, Court No. 3 Banda. In this judgement, lower appellate court had given finding that plaintiffs are owner of disputed plot detailed in plaint may by letters Ka, Kha, Ga, Gha on the basis of sale deed executed by defendant's father in favour of plaintiff's father. But appeal was allowed on the ground that trial court had not appreciated the status of construction present on disputed property during pendency of suit and had not given finding as to what was the status at the time of initiation of the suit. Solely on this ground, first appeal was allowed.
This contention of learned counsel for the appellant appears acceptable that if applicant is owner of the disputed property and his suit is not time barred, then he has right to acquire its possession. Therefore, this appeal is admitted.
Following substantial question of law is framed.
" Whether the impugned judgment of first appellate court is erroneous and perverse when it had dismissed the suit solely on the ground of presence of construction of defendant/respondent over it ? If so, its effect ?
Summon the lower court records.
Issue notice to the respondents. Steps within 15 days by both ways.
List after service of notice.
Till further orders, no new construction shall be raised by defendant/respondent over disputed property.
Order Date :- 6.5.2016 Sanjeev