IMPORTANT POINTS
Decree can be granted if the property is identifiable even in absence of length and breadth of the land.
Appellate court can remit the case or decide itself if sufficient evidence is available on record.

JUDGMENT

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated 10.12.2008 passed by High Court of judicature at Allahabad whereby Second Appeal is allowed and the decree passed by Civil Judge (Junior Division), Havali, Saharanpur, in Suit No. 77 of 1999, is restored.

2. We have heard learned counsel for the parties and perused the papers on record.

3. Brief facts of the case are that plaintiff/respondent instituted suit (OS No. 77 of 1999) seeking permanent injunction against his brother defendant/appellant no. 1 - Zarif Ahmad and nephew Zamir Ahmad (defendant/appellant no. 2) to restrain them from interfering in possession of the premises in his occupation. It is pleaded by the plaintiff that the land shown at the foot of the plaint (Annexure P-1) with letters Ka, Kha, Ga, Gha, Cha, Chha, which bears Nagar Panchayat plot no. 358 is owned and possessed by him, and the adjoining land shown by letters Gha, Cha, Chha, and Jha bearing Nagar Panchayat plot no. 357 belongs to the defendants. It is further pleaded that plaintiff pays house tax of the property no. 358, and defendants have no concern with it. The defendants have constructed their house over the land shown by letters Gha, Cha, Chha, and Jha which is towards south of the plaintiff's land. It is alleged in the plaint that the defendants have threatened the plaintiff that they would forcibly take possession of the premises held by him. Consequently, the suit is filed.

4. The defendants contested the suit, and filed written statement (copy-Annexure P-3) before the trial court. They denied the title and possession of the plaintiff over land in suit. It is stated in the written statement that the disputed land originally belonged to one Zamindar of town Behat, before abolition of Zamindari. The land in question was vacant piece of land, occupied by defendant no. 1 who constructed his residence and planted trees over it. He (defendant no. 1) continued his possession over the land and started paying house tax since 1979 when Town Area of Behat was notified. It is further pleaded by the defendants that original Khasra number of the plot in question was 734/2/3. It is further pleaded that the plaintiff has been given share in the house of his father in the ancestral property situated in town Kasban, and he lives with his family there. It is alleged by the defendants that the plaintiff got his name entered in the municipal record in connivance with the Chairman and Members of Town Area Committee, Behat, and got the disputed property numbered as 358. It is further pleaded that the suit is bad for mis-joinder of defendant no. 2. With the above pleadings, the relief claimed by the plaintiff was opposed by the defendants.

5. The trial court, on the basis of the pleadings of the parties, framed the following issues:

(1) Whether the plaintiff is owner and in possession of the suit property?

(2) Whether the defendants are illegally interfering with the peaceful possession of the plaintiff by cutting the trees, demolishing the structure and forcibly taking possession of the property?

(3) Whether the suit is barred by the provisions of Sections 38 and 41 of Specific Relief Act?

(4) Whether the suit is undervalued and court fees paid is insufficient?

(5) Whether the suit is bad for mis - joinder of defendant no. 2?

(6) To what relief, if any, the plaintiff is entitled?

6. The parties adduced their oral and documentary evidence before the trial court. On behalf of the plaintiff, PW1-Mohd. Farooq (plaintiff himself) and PW 2-Idrish were examined. On the other hand, on behalf of the defendants, DW1-Zarif Ahmad (defendant no. 1 himself), DW2-Safiq and DW3-Anita (Advocate Commissioner, who inspected the spot), were examined. It appears that plaintiff filed documents to show that in the Assessment Register of the Town Area, plot no. 358 is recorded in his name whereas plot no. 357 is recorded in the name of defendant no. 1-Zarif Ahmad. He further filed receipts showing payment of house