JUDGMENT

Jaspreet Singh, J.

Heard Sri A.K. Jauhari, learned counsel for the appellants and Sri R.U. Pandey, learned counsel for the respondents.

2. The instant second appeal has been preferred by the defendant-appellants being aggrieved against the judgment and decree passed by the Lower Appellate Court dated 18.02.1987 passed by the 1st Additional Civil Judge, Sultanpur in Civil Appeal No. 237 of 1980 whereby it dismissed the defendant's appeal and affirmed the judgment and decree passed by the VIIth Additional Munsif, Sultanpur dated 24.08.1980 whereby the plaintiff-respondent's suit for temporary injunction was decreed.

3. The instant second appeal was admitted by the Court by means of order dated 31.03.2005 on the two substantial questions of law which reads as under:-

"1. Whether after admission of plaintiff no. 2 that he neither has any share in the land in suit nor possession over the said land, the suit could be decreed.

2. Whether the finding recorded by the court below is based on misreading of evidence ignoring important aspect of the matter."

4. Briefly, the facts giving rise to the instant appeal are that the plaintiff-respondent instituted a suit seeking a decree of permanent injunction against the defendants with the averments that the property which was shown by letters Ka, Kha, Ga and Gha, the land appurtenant to the house of the plaintiffs and was being utilized by the plaintiffs for the purposes of tying their domestic animals and they also have some trees and the plaintiffs have been enjoying the fruit and the wood of such trees. The said land was also used for drying cow dungs and also for keeping the cattle feed and storing grains.

5. It was also pleaded that the plaintiffs have perfected their rights and the said land vested with them in terms of Section 9 of the U.P.Z.A. & L.R. Act and the defendants have no right title or interest in respect of the aforesaid property, however, they are trying to interfere in the possession and also kept a Saria over the land which belonged to the plaintiff and in the aforesaid circumstances, a decree of permanent injunction was sought restraining the defendants from interfering in the peaceful possession, use and occupation of the disputed land by the plaintiffs as well as seeking a decree of mandatory injunction commanding the defendant-appellants from removing the alleged Saria which was placed on the land in dispute.

6. The suit came to be contested by the defendants-appellants by filing their written statement and it was pleaded that the property in question was part of the land which was enjoyed by one Sri Jai Narayan Singh. It was stated that after the death of Sri Jai Narayan Singh, the defendants being the legal heirs and representative inherited the said property and they have also now acquired right in terms of Section 9 of the U.P.Z.A. & L.R. Act. It was also urged that the plaintiffs were actually trying to encroach upon the land which vested with the defendants.

7. Upon the exchange of pleadings, the Trial Court framed five issues, however, the solitary issue upon which the trial was contested was whether the plaintiff is the owner in occupation of the land in suit and the trees standing thereon as alleged. The parties led their respective evidences and thereafter the Trial Court by means of judgment and decree dated 23.04.1980 partly decreed the suit in so far as the relief of permanent injunction was concerned, but it turned down the relief of mandatory injunction.

8. B