JUDGMENT B.D. Agarwal, J. - This is plaintiff's appeal. 2. The plaintiff was bhumidar of plot no. 768 situate in village Doghat, the western portion of this plot is comprised in a grove and the plaintiff has denoted it in the sketch map at the foot of the plaint by letters Aa Ka Kha Ga. A portion out of plot no. 768 measuring 4 bighas 17 biswas and 5 biswansis was transferred by the plaintiff to the defendants under a registered deed of sale on April 5, 1970. That portion is denoted by the plaintiff by letters Aa Cha Chha Ja Sa Ba. The plaintiff maintains that portion Aa Ba Sa Da was not transferred to the defendants. There is a Khaye or raised boundary wall around the grove held by the plaintiff. This exists also towards east and on that side there is also khandak or ditch in the width of nearly metre and deep to the same extent which is meant for earth, therefrom being utilised in maintaining the said boundary wall around the grove. On April 5, 1970 itself there was an agreement in writing entered into between the parties whereby it was made clear that defendant-vendees shall have no right over the ditch or khandak towards the eastern boundary wall of the plaintiff's grove or the trees standing thereon. Despite this the defendants threatend and intended to include within their land the ditch belonging to the plaintiff and hence the suit was instituted on October 14, 1970 for perpetual injunction. During the pendency of the suit, the defendants encroached upon a portion of the said ditch denoted by letters Aaa Ba Dha Pa in the sketch map appended to the plaint covering 210 ft in length and 4 ft, in width. The plaintiff, therefore, amended the plaint by his application 32-A made on August 23, 1971 claiming the relief for possession in respect of that portion. The defendants resisted the suit pleading that the portion As Ba Sa Da is included in the land purchased by them and that there has been no ditch or Khandak towards the east. It was also pleaded that the suit does not lie in the civil court. 3. The trial court held on January 18, 1973, that the main relief claimed in the suit is that of perpetual injunction and hence the suit lay in the civil court. It was also pleaded that the suit does not lie in the civil court. 3. The trial court held on January 18, 1973, that the main relief claimed in the suit is that of perpetual injunction and hence the suit lay in the civil court. On merit, the finding recorded by the trial court on October 12, 1973, was that the land in dispute does not belong to the plaintiff and hence the suit came to be dismissed. The lower appellate court recorded the finding that the civil court cannot grant the relief of possession to the plaintiff though there is no bar to the relief of permanent injunction being granted in the suit giving rise to this appeal. It was further held that the plaintiff had not established his title in respect of the land in dispute and that the agreement dated 5-4-1970 having been entered into prior to the execution of the deed of sale, it may be that the same, was modified or rescinded by the subsequent deed of sale. The appeal was, consequently, dismissed by the lower appellate court on April 12, 1975. Aggrieved, the plaintiff preferred this appeal. 4. In so far as the question of jurisdiction of the civil court to try the suit giving rise to this appeal is concerned, the lower appellate court seems to overlook the salient provisions contained in sub-section (1-A) of Section 331 of U.P. Act I of 1951. The trial court had recorded the finding dated 18-1-1973 to the effect that the suit lie in the civil court. The defendants did not allege nor did they make out that there has been failure of justice caused on this account. In the absence of any thing to denote the failure of justice, the lower appellate court could not interfere with the finding relating to the jurisdiction of the civil court in view of sub-section (1-A) above mentioned, see Sahbachand and another v. Narayan Singh and others, (1981) Alld. Civil Journal, 138 (DB), Baldeo v. Beni Lal Kedra and another, (1980) Alld. Civil Journal, 148 (DB). The provision in this respect is at par substantially with Section 21 of the Code of Civil Procedure and Section 11 of the Suits Valuation Act. 5. Civil Journal, 138 (DB), Baldeo v. Beni Lal Kedra and another, (1980) Alld. Civil Journal, 148 (DB). The provision in this respect is at par substantially with Section 21 of the Code of Civil Procedure and Section 11 of the Suits Valuation Act. 5. Learned Counsel for the plaintiff-appellant submitted next that the finding recorded by the courts below with respect to the title of the plaintiff over the disputed land is perverse being based upon a misreading of the evidence. The lower appellate court has found the agreement dated 5-4-1970 (Ex. 1) to be duly executed between the parties. It was observed that this came into being prior to the deed of sale and hence it may be that the terms thereof were modified or rescinded when the deed of sale came to be executed. This is a mere surmise on the part of the court below. The deed of sale was executed on the same date and it was up to the defendants to have placed on record the deed of sale in case they intended to make out that there was any departure in that instrument from the terms incorporated in the written agreement. The lower appellate court is not right in saying that the plaintiff had to prove with the help of the deed of sale that he had not transferred the land in dispute to the defendants. In my view it was up to the defendants to have produced the deed of sale, as they asserted that the disputed land is also included within the land transferred to them. The defendants have not filed the deed of sale to show that there was departure made from the agreement in any respect. It was again for the defendants to have got survey made, if so deemed fit, to show that the land in their possession minus the disputed land would be less than the area of 4 bighas 17 biswas 5 biswansis for which the transfer was executed. This also was not done for or on behalf of the defendants. The topography of the land as also appearing from the Commissioner's report 12-C and the accompanying copy 13-C reveals that out of plot no. 768 belonging to the plaintiff, he made transfer in respect of an area of 4 bigha 17 biswa and 5 biswansis towards the east. In the western direction of plot no. The topography of the land as also appearing from the Commissioner's report 12-C and the accompanying copy 13-C reveals that out of plot no. 768 belonging to the plaintiff, he made transfer in respect of an area of 4 bigha 17 biswa and 5 biswansis towards the east. In the western direction of plot no. 768 the plaintiff admittedly has had his grove. The Commissioner found that there is raised boundary or khai existing around this grove including towards the east. The plaintiff has maintained that for the purpose of maintaining the boundary wall, he has had the ditch towards east and, in order to safeguard his interest in relation to the same, there was the precaution taken by him to obtain the agreement dated 5-4-1970 whereby it is stipulated that they shall not interfere with the possession of the plaintiff over the said ditch or the eastern boundary wall or the trees standing thereon. This is by no means unnatural or improbable. The plaintiff referred to the boundary wall and the ditch and he has been corroborated by P.W. Nanu Mai and P.W. Harphool, both of whom are witnesses to the said agreement. The lower appellate court has not discarded the testimony of these witnesses. The observation made by the lower appellate court then to the effect that the plaintiff has not identified the disputed land or given its dimension with the preseger is also, it would appear, based on misreading of the pleadings and report of the Advocate Commissioner based on the local inspection made by him on October 18, 1970 shortly after the suit was brought on 14-10-1970. In para 7 (a) of the plaint, it has been specified that the portion encroached by the defendants is 210'x 4'. In para 3 the width of the ditch is given 1/2 meter. The depth is also indicated likewise. The Advocate Commissioner noted that at the place denoted by him by letters Aa and Dha in the sketch map appended to his report, the length is 210', as alleged by the plaintiff, and there is a Mend of the width of 6'. The depth is also indicated likewise. The Advocate Commissioner noted that at the place denoted by him by letters Aa and Dha in the sketch map appended to his report, the length is 210', as alleged by the plaintiff, and there is a Mend of the width of 6'. Pie also noted that in that particular portion there was no ditch in the width of 4', while to the immediate south and north of the portion Aa Dha, there is a ditch to the width of 4' from the Commissioner's report as well, therefore, it is indicated that, in all probability, the ditch existed at the portion Aa Dha also in continuation of the portion to the immediate south and north thereof. The report of the Advocate Commissioner does not appear to have been read correctly by the lower appellate court which also failed to draw the requisite adverse inference against the defendants for their failure to produce the deed of sale obtained by them. 6. Consideration being had to the above, I find that the plaintiff appellant did establish on the record his title to the land in dispute and that the defendants had encroached upon the portion denoted in the Commissioner's map by letters Aa and Dha without authority. The entire strip of land in dispute is denoted in the Commissioner's map by letters Aa Da Ba Dha. 7. Consequently, the appeal succeeds and is allowed with costs. The judgment and decree of the lower appellate court are set aside. The suit shall stand decreed for possession of the portion Aa Dha and for perpetual injunction in respect of Aa Da Ba Dha restraining the defendants from interfering by themselves, their servants or agents with the possession of the plaintiff.' The Commissioner's map 13-C shall form part of the decree.