Hon’ble Sudhir Agarwal, J.—This is defendant’s appeal under Section 100 of Code of Civil Procedure arising from judgment and decree dated 4.7.1979 passed by Sri Suresh Chandra Srivastava, Vth Additional District Judge, Deoria in Civil Appeal No. 75 of 1975, who has allowed the said appeal, reversed judgment and decree dated 16.5.1975 passed by Munsif Deoria in Original Suit No. 539 of 1969 and decreed the suit.

2. Substantial question of law which have arisen in this appeal and need be adjudicated by this Court, are as under:

(i) Whether the Suit of the plaintiff could be decreed by the lower appellate Court without reversing the finding of the trial Court that Nanai and Sheo Nath were not Zamindars, from whom the plaintiff claimed the property having acquired, merely on the ground that it was so mentioned in the amended plaint?

(ii)Whether the Judgments, Exts A-2 and Q A3 were not given due weight, though they were admissible in evidence.

3. Plaintiffs Dev Nandan and Ram Bilash instituted suit No. 539 of 1969 in the Court of Munsif, Deoria, seeking a permanent injunction against defendants in respect of land, marked by letters ABCD, at the bottom of the plaint.

4. Plaint case set up was that the plaintiffs had their house No. 281 over shikmi plots No. 83, 85 and 89 with its Sahan (open land in front of the house) in plot No. 84 and 88 and backyard in shikmi plot No. 90. Defendants had no concern therewith and therefore should be restrained by issuing permanent injunction from interfering in the peaceful possession of plaintiffs.

5. Family pedigree of plaintiffs and defendants shown in the plaint is as under:

Thakur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   Pheku      Brij Mohan Lal Bihari     Ritu          Ram Lagan  Bhagwat   Sri Krishna     Raghunath    (Deft. No. 5)       Ram Sharikh @ Gobar       (Deft No. 6)   Pitambar Shanker   Vindhyachal       Ram Sakal (Deft No. 1)      (Deft. No. 2)     (Deft No. 3)         (Deft No. 4)   Tufani    Chandra Deo        Sri pati (Deft No. 7)      (Deft No. 8)    (Deft No. 9)          Ram Kishun          Dev Nandan          (Plaintiff No. 1)        Ram Bilas (Plainff No. 2)!Unexpected End of Formula

       6. Defendants contested the suit giving their own family tree combined of plaintiffs and defendants as under:

7. It is further alleged by the defendants that house over plots No. 83, 85 and 89, and Sahan on plots No. 84, 88 and 90 is not the sole property of plaintiffs. It was an ancestral property in which plaintiffs and defendants had equal shares. Disputed land marked ‘ABCD’ was the sole property of defendants and plaintiffs had no concern therewith. Disputed land is partly in plot No. 87 and partly in plot No. 88 on which a house was constructed by defendants and they are using the same for placing Gobar, Goitha, Ghoora etc. (cow-dung, cow dung cake and heap of cow dung etc.). They also