JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. The appellants/defendants have filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 06.01.1999 passed by the learned Additional District Judge, Sakti District-Bilaspur in Civil Appeal No. 14-A/97, by which learned Additional District Judge, Sakti has allowed the appeal setting aside the judgment and decree dated 28.02.1997 passed by the Second Civil Judge Class-2, Sakti, District- Bilaspur in Civil Suit No. 48-A/89 by which learned Second Civil Judge Class-2 has dismissed the suit on count that the plaintiff has failed to prove their possession.

2. The appeal was admitted on 06.08.1999 on the substantial question of law as under:

(i) Whether the First Appellate Court has erred in allowing the plaintiff's appeal and decreeing the suit by observing in paragraph 9 of the impugned judgment that the receipt referred to in the trial court's judgment is not available in the record, though the same is very much available in the trial court's record?

3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 48-A/89.

4. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Second Civil Judge Class-2, Sakti for declaration of the suit for obtaining the vacant possession of the suit land after demolition of the house constructed on the land described in the Schedule A as also for issuance of permanent injunction restraining the defendants from plaintiff's enjoyment over the door constructed on a part of the land and further restraining them to cause obstruction from interfering with the plaintiff's right. It has been pleaded by the plaintiff that he has purchased the land of Schedule A attached with the land bearing Khasra No. 617 area 0.07 disimal for a sum of Rs. 3000/- vide registered sale deed dated 26.03.1984 from one Preet Kunwar but the defendants have illegally constructed a house on an area of 10 x 15 feet and have also developed Kolabadi. There was dilapidated construction on the suit land but the defendants denied to make repair of the said dilapidated construction and unnecessary raising dispute, which has necessitated him to file the suit.

5. The defendants have filed their written statement resisting the claim of the plaintiff contending that they have obtained possession of the land from its owner Preet Kunwar by virtue of an agreement dated 05.04.1974 after paying Rs. 530/-. The defendants have also filed a map with the written statement on the pleading that the plaint map is not correct. According to them the house has been constructed by the defendant No. 1 in 1979 and since then they are residing in the suit property. It has been specifically pleaded in the written statement that on 18.05.1984 the plaintiff has tried to take possession from the defendants illegally. It was objected by the defendant No. 1 on which the defendant No. 1 was given severe beating on his left hand as a result of which he has become handicapped. A case under Section 325 IPC has also been registered against the plaintiff, therefore, would pray that the suit filed by the plaintiff may kindly be dismissed.

6. During the pendency of the suit Defendant No. 1 Ghasiya expired, therefore, his legal representatives namely Ramdas, Munna, Sumitra Bai, Amrit Das and Prembai were brought on record. As defendants No. 1a, 1b, and 1c were minor, they were represented by their mother Prembai. Since during the pendency of the suit Defendant No. 4 Narbandiya expired and her legal representative was already on record, therefore, her name was deleted.

7. On the pleadings of the parties, learned trial Court has framed as many as 9 issues. The defendants have specifically pleaded that the plaintiff is not in possession of the suit property and in the Kolabadi defendant No. 1 has grown vegetable and since the plaintiff is not in possession of the property, therefore, he is not entitled for mesne profit also and woul