Possession established under Section 9 of the U.P. Z.A. & L. R. Act, with admissibility of partition deeds for evidential purposes despite non-signatory status.

JUDGMENT :

Jaspreet Singh, J.

1. Heard Shri M.A. Siddiqui, learned counsel for the appellants and Shri Satya Prakash Dubey, learned counsel appearing for the respondent.

2. This is defendants second appeal assailing the judgment of reversal passed by the 4th Additional District Judge, Barabanki in Civil Appeal No.14 of 1989 whereby the suit of the plaintiffs for injunction which was dismissed by the trial court was decreed by the lower appellate court.

3. The instant second appeal was admitted by this Court on 15.10.1990 on the questions of law which reads as under:-

"(G) Whether the unregistered deed of partition could be read in evidence and defendants being not signatory to the same they could be held bound by the same?"

(H) Whether there being no reference of the land in suit in 1967 partition agreement a finding on the basis of said agreement could be recorded on surmises and conjectures?"

4. Before adverting to the aforesaid questions of law certain brief facts giving rise to the instant appeal are noticed hereinafter.

5. The original plaintiff, namely, Abdul Rahman instituted a suit before Munsif, Barabanki registered as Original Suit No.212 of 1981 against six defendants, namely, Allarakhu, Ashiq Ali, Sadiq Ali, Munna, Anwar Ali and Chunna. It was specifically pleaded by the plaintiff-respondent herein that the plaintiff is the owner in possession of the property shown by letters A, B. C. D. which was part of his Sehan and was located on the northern side of his house. It was further pleaded that the same has been in the possession of the plaintiff since the time of his forefather and that now it vested with him and he had acquired rights in terms of Section 9 of the U.P. Z.A. & L. R. Act, 1950 (hereinafter referred to as the Act 1950). An alternate plea was also raised stating that the plaintiff is in possession since last over 15 years and have also acquired and perfected his rights by adverse possession. It is in the aforesaid backdrop, it was stated that since the defendants were attempting to encroach upon the land of the plaintiff and creating disturbance. The suit for injunction was filed restraining the defendants from creating any disturbance or interfering in the peaceful possession of the appurtenant land shown by letters A, B, C and D which was being utilized by the plaintiff from the time of his forefather and also for his ingress and egress, tying of domesticated animals, drying of cow-dung and keeping agricultural implements.

6. The defendants contested the suit denying the allegations as made by the plaintiff and specifically stated that the defendants were the owner of Plot No.1233 which was the house of the defendants and over Plot No.1235 the defendants had their Sehan. It was also stated that earlier the plaintiff had his ingress and egress towards the souther side of his house but a little prior to the institution of the suit the plaintiff opened a door on the northern side and as such the plaintiff did not have a right to seek injunction as the same was in the possession and the property belonged to the defendants, accordingly it was the defendants who had a right in terms of Section 9 of the Act of 1950 and not the plaintiff and in the aforesaid circumstances where the plaintiff already had his ingress and egress from the southern side and thus the suit was liab