The appellate court can reverse trial court findings and consider all evidence in a permanent injunction suit, even after confirming some findings, if the trial court inadequately assessed the evidence.

JUDGMENT

Rajnish Kumar, J.

The plaintiff-respondent filed a suit bearing No.181 of 1981; Shiv Das v. Ram Pratap and Others, for permanent injunction against the defendant-appellants alleging that he is residing in the Village- Bhairavpur since the time of his ancestors and in the house of his ancestor. The land in dispute situated in the east of the house of the plaintiff marked as A B C D in the site plan was obtained by him through Ijazatnama dated 21.05.1947 from the defendant no.3 in the suit namely Avdhesh Pratap Singh; the then Zamindar. Thereafter he constructed mud house (Kachha Makan) on some portion, which fell in the flood of 1955. However, he is using the land in dispute as his abadi and raised a wall of bricks in the year 1977 and constructed a room with tin shed on the southern side of the land in dispute and filled the plinth on the northern side. The house and shop of the defendant nos.1 and 2 are at a distant place from the said place.

2. It has further been alleged that the plaintiff is in possession on the land in dispute since prior to 1947, therefore he has got the title on the same under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (here-in-after referred as the Act of 1950). The defendants are threatening to make the possession on the land in dispute.

3. It was also alleged that the defendants had got a Regular Suit No.269 of 1978 filed against the defendants and some other persons by the defendant no.3 in regard to the land in dispute and the adjacent lands. In the said suit the plaintiff had got himself impleaded by making an application but the defendant no.3 made a compromise with the defendants of the said suit and got the name of the plaintiff deleted from the array of the parties and accordingly got the suit decided, on account of which the defendants morals are high in this regard. With the aforesaid pleas/ allegations the suit for permanent injunction was filed.

4. The defendant nos.1 and 2 only filed the written statement denying averments made in the plaint. They stated that the plaintiff was never in possession on the land in dispute. The alleged Ijazatnama dated 21.05.1947 is illegal and ineffective because the same is not registered, whereas the same was required to be registered, therefore it was in violation of the transfer of property act.

5. It was further alleged that the plaintiff had never been in possession on the land in dispute nor such house had fallen in the year 1955. The defendant nos.1 and 2 further claimed in the written statement that they are putting their animals, fodder and making dung cake(kanda) on the land in dispute since prior to the zamindari abolition, therefore the defendants have got the necessary rights under Section 7 (AA) of the Act of 1950. The room on the land in dispute is of the defendant nos.1 and 2 in which they are running a shop and the remaining portion is under construction, on which they have put their lock. Thus, they are in possession. Further objection of deficiency of court fees and non impleadment of necessary parties was also taken.

6. On the basis of the pleadings of the parties, four issues were framed. 1-

7. The plaintiff filed the original copy of Ijazatnama. The plaintiff Shiv Das got himself examined as PW-1, Ram Awadh Singh as PW-2 and Abhay Raj Singh as PW-3. The defendants also filed certain documents which includes certified copy of compromise and decree on the basis of compromise in Original Suit No.279 of 1978 and copy of Pariwar Register. The defendant no.1 Ram Pratap got himself examined as DW-1, Taj Mohammad as DW-2 and Ram Pyare as DW- 3. The trial court after considering the pleadings of the parties, evidence and material on record recorded a finding that since the Ijazatnama was required to be registered under Stamp Act and Registeation Act in view of cost of land in dispute disclosed by PW.2 and it was not registered, therefore it can not be read in evidence and since the witnesses of plaintiff showed