Honble GOYAL, J.–Both the appeals (Appeal No. 135/1997 by the plaintiff and Appeal No. 144/1997 by the defendants) have been preferred against the judgment and decree dated 11.2.1997 whereby learned Additional District Judge, Baran partly decreed the plaintiffs suit for mesne profits and possession. The parties would be referred as arrayed in the plaint.

(2). The relevant facts in brief are that the plaintiff filed the civil suit No. 55/1992 on 1.6.1992 for mesne profits and possession of disputed open land with the averments that one quarter situated in south of the disputed land marked ABCD in the site-plan was let-out to Late Sh. Basanti Lal-father of all the three defendants. The defendants came into possession of the disputed plot by way of trespass on 1.10.1989. The plaintiff asked the defendants to vacate it and also served a notice dated 19.4.1991 by registered post making the demands to pay mesne profits @ Rs. 1500/- per month and to vacate this land. The defendants did not comply with the notice. The plaintiff prayed for a decree of mesne profits for a period of ten months from 1.8.1991 to 31.5.1992 and also prayed for delivery of possession. It was also averred in the plaint that in a earlier suit the plaintiff has claimed mesne profits for a period of 22 months from 1.10.1989 to 31.7.1991 and that civil suit No. 52/1991 between the same parties is pending.

(3). The defendants in joint written statement pleaded that the quarter (shop) was let out by the plaintiff on 29.11.1985. Since the disputed plot is situated in front of this shop it is being used by the defendants since the commencement of the tenancy and thus this open land is part of the rented shop. The facts of committing trespass over this open land on 1.10.1989 have been denied. It was further pleaded that the plaintiff agreed with Late Sh. Basanti Lal at the time when this shop was given on rent that he would raise a wall of 9ft. width and 15 ft. In length over the plot belonging to the plaintiff in to let out to Late Sh. Basanti Lal and till then monthly rent @ Rs. 125/- of the shop would be paid by Late Sh. Basanti Lal to the plaintiff. But the plaintiff failed to perform this agreement.

(4). The plaintiff in rejoinder pleaded that such an agreement though took place between the plaintiff and Sh. Basanti Lal but the same was cancelled during the lifetime of Sh. Basanti Lal and advance amount of Rs. 1,000/- paid to the plaintiff was repaid to Sh. Basanti Lal. It was denied that the open land was a part of the rented shop and it was being used by Late Sh. Basanti Lal since 1985.

(5). On the basis of the pleadings of the parties, following issues were framed :-

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(6). After recording the evidence of the parties the trial

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