Hon’ble Siddharth, J.—Heard Sri V.S. Kushwaha, learned Counsel for the appellant and Sri Shashwat Shukla holding brief of Shri Kaushlesh Tripathi, learned Counsel for the defendant-respondents.

2. This is defendants’ second appeal against the judgement and decree dated 25.9.2007 passed by Shri R.K. Mishra, Additional District Judge, Court No. -2, Banda, in Civil Appeal No. 52 of 2006 dismissing the appeal of the defendants and affirming the judgement and decree dated 27.7.2006 passed by Shri Jagdish Kumar, Civil Judge (S.D.), Banda in Original Suit No. 258 of 2001.

3. The plaintiff instituted an original suit praying for decree of mandatory injunction aginst the defendant for removing their constructions over plot No. 1489, area 2 Bigha, 3 Biswa, 10 Biswansi situated in village Bhawanipurwa Z area Pargana and Tehasil Banda.

Plaint case in short is that plaintiff is Bhumidhar of 1/2 part of plot No. 1489, area 2 Bigha 2 Biswa, 10 Biswansi situated in village Bhawanipurwa Z area Pargana and Tehasil Banda; that remaining 1/2 area of the aforesaid land is owned by defendant No. 8 Harish Chandra as Bhumidhar; that defendant No. 8 purchased 1/2 area of the aforesaid plot by means of registered sale-deed 19.9.1992 from Nand Kishore; that land aforesaid has not been partioned between plaintiff and defendant No. 8, therefore, defendant No. 8 has no right to sell the same to defendant Nos. 1 to 7; that defendant No. 1 has purchased a “Khaprail house” area 15 ft. x 62 ft. over one Biswa of the aforesaid land; that defendant No. 2 has constructed a boundary over 66 ft. x 77 ft. over 2 Biswa of land; that defendant No. 3 has constructed a boundary and room over 48 ft.x 59 ft.;that defendant No. 4 has constructed “Khaprail house” of 45ft. x 62ft. over 3 Biswa of land; that defendant No. 5 has constructed house of 45 ft. x50 ft. over 3 Biswa of land; that defendant No. 6 has constructed boundary of 45 ft.x 62 ft. over 3 Biswa of land ; that defendant No. 7 is making construction of 30 ft.x 62 ft. over 2 Biswa of land; that all the constructions of the defendants are illegal; that Manoj son of Ram Swaroop is close relative of defendant Nos. 1 to 7 and he has started making construction by digging foundation over 4 biswas of land; that in June 2001 defendants had started their illegal construction which was reported by the plaintiff to the police and proceedings under Section 107/116 of Criminal Procedure Code was taken by the police but they did not stopped their illegal constructions ; that original suit Nos. 628 of 1995 and 15 of 1998 are pending between the plaintiff and defendant No. 8; that plaintiff has right over every inch of land in dispute; that defendants have illegally opened passages and plaintiff is not able to use his house, hence they are required to be directed by means of decree of mandatory injunction to remove the disputed construction failing which the same should be directed to be removed through Court and damages @ Rs. 250 per month may be directed to be paid by defendant No. 8 and Rs. 150/- per month to be paid by other defendants.

4. The defendant No. 1, Raj Kumar and defendant No. 5 Bhurelal filed their written statements stating that plaintiff is not the Bhumidhar with transferable right of the disputed land and they have purchased the property from defendant No. 8 ; that they belong to scheduled caste; that the plaintiff has no right to dispossess them; that the Civil Court has no jurisdiction to hear the suit and suit is barred by the principles of estoppel.

Defendant No. 2, Brij Kishore and defendant No. 6, Ram Khelawan, have also filed their written statements stating that defendant No. 2 has purchased the land by means of notarial agreement to sale dated 20.12.1993 and has constructed four rooms, Court yard and latrine and is residing therein; that the defendant No. 6 has also purchased the land from defendant No. 8 on 12.4.1993 for Rs. 27,000/- and has constructed two rooms; that the plaintiff has file