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intzar HusaIn and anr. Vs. Shaikh Abdul Haq and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in124Ind.Cas.558
Appellantintzar HusaIn and anr.
RespondentShaikh Abdul Haq and ors.
Excerpt:
injunction - suit for mandatory injunction--title of neither party proved--plaintiff's duty to prove his title--dismissal of suit, legality of. - - 6. in this court it has been contended that the lower appellate court's finding that the plaintiffs had failed to prove their title must stand, and this court was not justified in upsetting a finding of fact......nos. 1 and 2.3. the learned munsif found that the title-deeds of the parties did not cover the land in suit. these documents describe the lane as a passage leading to houses. the munsif also found that there is no evidence to prove that the title to the land was in the government. he, therefore, came to the conclusion that the land below the bridge was the property of both parties. holding, therefore, that the bridge had been constructed over joint land, he directed the removal of it.4. there was an appeal by defendants nos. 1 and 2, and the learned subordinate judge came to the conclusion that there was no evidence to prove that the plaintiffs had any title to the land below the bridge. he, however, found that it was possible that the title to the land lay in the defendants. having.....
Judgment:

1. The plaintiffs, who are the respondents in this Court, brought the suit, out of which this appeal has arisen, to obtain, inter alia, a mandatory injunction directing the defendants to remove abridge which they had constructed over a lane to connect their houses situate on either, side of it. The basis of the claim of the plaintiffs was that the lane was their property, along with the defendants other than the defendants Nos. 1 and 2. The defendants Nos. 1 and 1 denied that the lane was the plaintiffs' property and said that it belonged to Government, being Nazul land.

2. It appears that the bridge crosses a blind lane in which the houses of the parties are situated, but at the site in question, namely, under the bridge, there is no body's house except those of the defendants Nos. 1 and 2.

3. The learned Munsif found that the title-deeds of the parties did not cover the land in suit. These documents describe the lane as a passage leading to houses. The Munsif also found that there is no evidence to prove that the title to the land was in the Government. He, therefore, came to the conclusion that the land below the bridge was the property of both parties. Holding, therefore, that the bridge had been constructed over joint land, he directed the removal of it.

4. There was an appeal by defendants Nos. 1 and 2, and the learned Subordinate Judge came to the conclusion that there was no evidence to prove that the plaintiffs had any title to the land below the bridge. He, however, found that it was possible that the title to the land lay in the defendants. Having come to that conclusion, he allowed the appeal and dismissed the suit.

5. The learned Judge of this Court hearing the second appeal has restored the decree of the Court of first instance and reversed that of the lower Appellate Court.

6. In this Court it has been contended that the lower Appellate Court's finding that the plaintiffs had failed to prove their title must stand, and this Court was not justified in upsetting a finding of fact.

7. In our opinion this contention is correct. The plaintiffs can succeed only on proving their title. Both the lower Courts, the Court of first instance and the lower Appellate Court, found that there was no evidence to support the plaintiffs' title. That was enough for the disposal of the plaintiffs' suit so far as this portion of the claim related. The plaintiffs having no title could not insist upon the removal of the bridge. We allow the appeal, set aside the judgment of this Court and dismiss the plaintiffs' suit. The appellants Nos. 1 and 2 will have their costs at both the hearings in this Court.


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