Judgement

KAPADIA, J. :- Leave granted.

2. Plaintiff (appellant No.1 herein) instituted Civil Suit No. 202/77 for permanent injunction in the court of Additional Munsif Magistrate-VII, Ballia, against defendants-respondents. In the said suit appellant sought permanent injunction restraining the defendants from interfering in the possession of the land in dispute or from raising boundary wall. In the suit it was alleged that the appellants owned a house from the time of their ancestors; that their sehan was towards the south of the said house; that the said sehan was in their possession even prior to the enactment of U.P. Zamindari Abolition and Land Reforms Act, 1950; and that their cattle, palanis and troughs etc. existed on the said land which was utilized by the appellants for different household purposes. The appellants further alleged that the disputed land was unbounded and that they had started construction of the boundary wall after leaving a small passage between their house and the sehan. The appellants further stated that they could not complete the boundary wall as they had to go to Bombay where they were employed; that when they came back from Bombay to the village they started the work of reconstruction which was obstructed by the respondents and, therefore, they were compelled to file the suit for a permanent injunction restraining the respondents from interfering in the possession of the land in dispute as also from interfering in the construction of the boundary wall.

3. The respondents denied the above allegations. They contended that the disputed land belonged to them; that the disputed land was used by them for different household purposes; that they had been in possession of the land in dispute for several years; that there was a passage between the house of the appellants and the disputed land in question; that the respondents had constructed a wall which could not be completed on account of the temporary injunction order obtained by the appellants in the present suit. The respondents further contended that the appellants were not tilling their agricultural land; that the appellants had let out their agricultural land to others and, therefore, there was no need of keeping any cattle or agricultural equipment on the disputed land as claimed by the appellants.

4. After framing the issues the trial court decreed the suit. The trial court held that the appellants were the owners and they were in possession of the disputed land.

5. Aggrieved by the decree passed by the trial court, the respondents herein carried the matter in appeal vide Civil Appeal No. 84 of 1979 in the court of Additional District Judge, Ballia.

6. By judgment and order dated 21.9.1981, A.D.J. came to the conclusion that the plaintiff-appellants had failed to prove that the disputed land was his sehan land; that appellant No.1 had admitted in his statement that one Raghunath Rai was the real brother of his father; that separation had taken place in the family between the appellants and Raghunath Rai; that prior to the separation, the appellants and Raghunath Rai were joint; that at that time they had a common sehan land and that the appellants sehan, at the time when the family was joint, was towards the east of his house. The lower appellate Court further found that both the appellants and the respondents were claiming the disputed land as an area appurtenant to their building. However, the lower appellate court came to the conclusion that the boundary wall was constructed by the respondents and not by the appellants. The lower appellate court further found that the appellants had no direct access to the land in question; that there was a lane running between the appellants house and the disputed land in question; that the appellants were not using the disputed land as his sehan from the time of their ancestors; that the appellants had admitted that before the partition the present house of the appellants was used for keeping cattle and that th