JUDGMENT :

(Rajnish Kumar, J.) :

1. Heard Shri Bajrang Bahadur Singh, learned counsel for the appellants and Shri Ved Prakash Yadav, learned counsel for the respondents.

2. This Second Appeal under Section 100 of the Civil Procedure Code 1908 has been filed for setting aside the judgment and decree dated 30.09.2003, passed by the Additional District Judge/Special Judge, E.C.Act, Court Room No.8, Sultanpur in Civil Appeal No.5 of 1998; Hriday Ram and others Versus Ram Kuber and others and the judgment and decree dated 11.11.1997 passed by the Civil Judge,( Jr.Div.), North, Sultanpur in Regular Suit No.949 of 1993; Hriday Ram and others Versus Ram Kuber and others.

3. This appeal was admitted to decide the following substantial questions of law:-

“1. Whether, the report of the Commissioner indicating that disputed abadi falls facing the house of the defendant, will it deprive the plaintiff appellant to use the abadi land as it was used by the common members of the family?

2. Whether, the claim based on the joint property and there is admission of the defendant that three Bhitoor and Ghhor are in existence, the courts below could reject such admission of the defendant without arising (w