The dispute in this appeal is with regard to 24'x18' piece of land situate in front of shop no.33 Vijaya Nagaram Market, Varanasi.
The claim of the plaintiffs-respondents is that a piece of land measuring about 14'x8' situate in front of above shop was allotted to their predecessors in interest by the Nagar Nigam and that in the previous Suit No.246 of 1969 between the parties, a finding has been returned that the plaintiffs-respondents are acutally in possession of 18'x24' of land in place of 14'x8'.
The submission of Sri C.K. Parekh, learned counsel for the defendant-appellant is that as in the plaint the plaintiffs-respondents have claimed rights only in respect of 14'x8' of land. No relief in excess of the aforesaid dimensions could have been granted by the court below. Secondly the land involved in the earlier suit was distinct and unless the identity of the two pieces of land is established the lower appellate could not have granted any decree.
Sri A. Nasir, has put in appearance on behalf plaintiffs-respondents. He prays for and is allowed one month's time for filing counter affidavit. Two weeks' thereafter are allowed to defendant-appellant for filing rejoinder affidavit.
List immediately after 6 weeks'.
Till the next date of listing the operation of the judgment, order and decree of the lower appellate court dated 18.9.2010 shall remain stayed and the parties are restrained from changing the nature of the land in dispute.
Order Date :- 19.10.2010 piyush