IMPORTANT POINT
The court affirmed that land claimed as appurtenant must be essential for the beneficial enjoyment of the house, proven by long-term use, and clarified the distinctions between easementary rights and adverse possession.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Sri Raghav Ram Upadhyay, learned counsel for the appellant and Sri Anil Kumar Pandey, learned counsel for the respondent.

2. The instant second appeal has been filed for setting aside the judgment and decree dated 29.03.1985 passed in Regular Suit No.304 of 1982 by Munsif Hawali, Faizabad now Ayodhya and judgment and decree dated 14.05.1987 passed in Civil Appeal No.89 of 1985 by VIth Additional District Judge, Faizabad, now Ayodhya.

3. The following substantial questions of law have been formulated in this second appeal:-

“(1) Whether on the facts and circumstances of the case, the Courts below would have decreed the suit in absence of specific findings with regard to the essential conditions required under Section 9 of the Uttar Pradesh Zamindari Abolition Act in favour of the plaintiff?

(2) Whether mere use of the land is sufficient to hold that the land had been settled under Section 9 of the Uttar Pradesh Zamindari Abolition Act?

(3) Whether essementary right and the adverse possession can be pleaded together and if not the suit is liable to be rejected?

(4) Whether the land lying after the public path and not adjoining the house of the plaintiff could be treated as land appurtenant to the house of the plaintiff under Section 9 of the Uttar Pradesh Z.A. & L.R. Act?”

4. Learned counsel for the defendant-appellant submitted that the plaintiff-respondent has failed to prove his possession on the land in dispute, therefore the suit could not have been decreed. The suit can be decreed only if the plaintiff is able to prove his case and not on the weakness of the defence of the defendant, whereas learned trial court and the appellate court have decreed the suit and dismissed the appeal on the ground that defendant-appellant has failed to prove his right on the land in dispute. He further submitted that the defendant-appellant was in possession of the land in dispute and it was admitted by the witnesses of the plaintiff-respondents also that thatch of the defendant-appellant is on the land in dispute. The drainage of the defendant-appellant, as per evidence adduced by the parties, was also going from the house of the defendant-appellant towards east, then north and then to the south in the pond. He further submitted that there is overwriting in the evidence of D.W.3 at page no.2 as 20 has been made 30.

5. On the basis of above, submission of learned counsel for the defendant-appellant is that the learned trial court as well as the first appellate court have wrongly and illegally decreed the suit and dismissed the appeal, therefore the appeal is liable to be allowed and the judgment and decree passed by the first appellate court and the trial court are liable to be set aside. He relied on Ramchandra Sakharam Mahajan versus Damodar Trimbak Tanksale(D) and others; 2007 (25) LCD 1515, Gurunath Manohar Pavaskar and Others versus Nagesh Siddappa Naval Gund and Others; 2008 (26) LCD 225 and T.K. Mohammed Abubucker (D) Thr. L. Rs. And Ors. Versus P.S.M. Ahamed Abdul Khader and Others; AIR 2009 SC 2966.

6. Per contra, learned counsel for the plaintiff-respondents submitted that the suit for permanent injunction was filed by the plaintiff-respondent. After filing of the suit, the defendant-appellant had raised construction and put thatch on the land in dispute, therefore, the suit was amended and prayer for mandatory injunction for removal of construction made by the defendant-appellant was made. Learned trial court, after considering the pleadings of the parties, framing the issues and affording opportunity of evidence to the parties decreed the suit by a reasoned and speaking order. The first appeal filed by the defendant-appellant has also rightly been dismissed in accordance with law after considering the pleadings of the parties and evidence. He further submitted that case set up at the trial stage was changed at the appellate stage by the defendant-appellant and a defence was taken that the land in disput