Hon’ble Jaspreet Singh, J.—This is the plaintiff’s second appeal. Being aggrieved by the judgment and decree dated 21.12.1988 whereby the suit of the plaintiff appellant was dismissed by the 7th Additional Munsif, Gonda and his first appeal was also dismissed by means of the judgment and decree dated 27.2.1991 passed by the 4th Additional District Judge, Gonda passed in Regular Civil Appeal No. 10 of 1989, this appeal has been preferred.

2. During the pendency of the appeal the sole appellant Rishikesh expired and he was substituted by his heirs. Smt. Sangari, Ramniwaz, Avinish Kumar and Vivek Kumar.

3. The plaintiff instituted Regular Suit No. 17 of 1987 in the Court of Munsif, Gonda pleading therein that he is the owner in possession of the property which was indicated in the site-plan and its informing part of the plaint in suit situate in Mauja Ramapur Pokhara, Pargana Nawabganj, Tahsil Tarabganj, District Gonda. It was pleaded by him that initially this property in question belonged to one Chhavi Lal and Ram Sumer who sold the same in the year 1973 to Ramrup and Rambadal. The plaintiff purchased the property from Ramrup and Rambadal by means of the sale-deed dated 3.6.1976.

4. Though the sale-deed was in the name of Rishikesh and his brother Rajitram. However, in terms of a settlement Rajitram was separated and he was given his share in the property belonging to the father Ramnaresh and in so far as the property the subject-matter of the suit is concerned, it was only Rishikesh who was its exclusive owner in possession. It was stated that the defendants who have the property adjacent to the property of the plaintiff, had an evil eye and being of litigious nature attempted to dispossess the plaintiff and off and on made interference in the peaceful use and occupation of the plaintiff. Thus, the suit for injunction was instituted seeking to restrain the defendants from interfering in the peaceful possession or from dispossessing the plaintiff from the property in question which was more fully described in the site-plan and is forming part of the plaint in suit.

5. At this stage it will be relevant to mention that the plaintiff’s amended their plaint including the site-plan and elaborated that the plaintiff was in possession of the same property which initially belonged to the Chhavi Lal and Ram Sumer who subsequently sold it to Ramrup and Rambadal and in turn to the plaintiff. The plea of settlement between the plaintiff and his brother Rajitram was also elaborated and it was mentioned that since the legal heirs of Rajitram had no concern, thus, they were not impleaded as party. However, upon the order passed by the trial Court, the legal heirs of Rajitram were impleaded as defendants No. 2 to 4 in the suit.

6. The defendant Harikesh filed his written statement and denied the plea raised by the plaintiff. It was denied that Ramrup and Rambadal were the owners and therefore, since they did not have any right, consequently, they did not have right to execute any deed in favour of the plaintiff Rishikesh. It was also pleaded that father of the plaintiff Ram Naresh had a house wherein the plaintiff was residing but, with evil intention, the plaintiff advanced inside the house of Chhavi Lal which was in a dilapidated condition and encroached the same and thereafter raised construction. The open land in question which is situate on the western side of the plaintiff’s house was actually the Sehan of the defendant which has been in his occupation since the time of his father as it vested in terms of Section 9 U.P. Z.A & L. R. Act.

7. It is on the aforesaid pleading that the trial Court framed two issues amongst others. The first issue was framed to the effect as to whether the plaintiff is the owner in respect of the property in question as stated in the plaint and the second issue was as to whether the defendant is the owner in possession of the disputed property.

8. The trial Court while considering the evidence of the pa