JUDGMENT D.S. Bajpai, J. 1. This is a plaintiff's second appeal against the judgment and decree dated 24.4.1978 passed by Civil Judge, Gonda in Regular Civil Appeal No. 63 of 1977 (Lalloo Khan v. Kanhaiya Lal) partly allowing the defendant's appeal which he preferred against the judgment and decree dated 29.4.1977 passed by Munsif, Gonda in Regular Suit No. 63 of 1975 (Kanhaiya Lal v. Lalloo) decreeing the plaintiff's suit for permanent injunction. 2. Brief facts giving rise to this second appeal are that the plaintiff filed Suit No. 63 of 1975 praying for issue of a permanent injunction in favour of the plaintiff and against the defendant, in respect of land marked in red in the plaint, to the effect that the defendant shall neither make any constructions thereon nor in any way disturb the right, title and possession of the plaintiff. A prayer for mandatory injunction for demolition of constructions, if any, on the disputed land was also made. The pleadings were to the effect that he was an old resident and tenant of village RamwapurGovinda, Pargana, Tahsil and district Gonda and that he had his house since long long times, since before the abolition of Zamindari. On the north of the plaintiff's house was his Sahan Darwaza and the disputed land which was entered in plot No. 29 (sic) which the plaintiff and his family used as their land appurtenant. On this very land, it was asserted, he had his Charni and cattle pegs for keeping his animals and that he had no other land appurtenant to his house for his peaceful enjoyment of the house. It was further alleged that the plaintiff was Sirdar of the disputed land also. It was alleged in the plaint that the defendant had nothing to do with the land in dispute and that the defendant's house did not have its opening on the northern side but was located somewhere else. The defendant filed his written statement and asserted that the land in dispute was never used by the plaintiff as his Sahan and it was not a land appurtenant to his house. In paragraph 11 of the written statement it was, however, admitted by the defendant that "Vadi Ke Makan Ka Sadar Darwaza Uttar Taraf Hai." On the pleadings of the parties the learned Munsif framed as many as 10 issues. In paragraph 11 of the written statement it was, however, admitted by the defendant that "Vadi Ke Makan Ka Sadar Darwaza Uttar Taraf Hai." On the pleadings of the parties the learned Munsif framed as many as 10 issues. The issues, however, relevant were issues 2, 3, 4, 5, 6, 7 and 9. Deciding issues 2, 4, 9 and 10 together the trial court recorded a finding that the disputed land was partly sirdari land of the plaintiff and partly it was plaintiff's Sahan which had settled with the plaintiff as land appurtenant under the provisions of Section 9 of the U. P. Zamindari Abolition and Land Reforms Act and the plaintiff had his Charni at the place marked with ka, kha, Ga, Gha. On issues 5 and 6 the trial court recorded a finding to the effect that the defendant had not purchased the land in dispute from Ram Piarey but some other land on northeastern side was purchased by the defendant from Ram Piarey and, as such, the construction by the defendant on the land in dispute was illegal. On issue no. 3 the trial court recorded a finding that since the plaintiff was out of possession he was entitled to get possession after demolition of the illegal construction. The trial Court on issue No. 7 reiterated the finding that as clarified in findings on issues 2, 4, 9 and 10 the land in dispute was a Sahan Land of the plaintiff on which he had perfected his title as land appurtenant under the provisions of Section 9 of the U. P, Zamindari Abolition and Land Reforms Act and, as such, held that the plaintiff was entitled to possession over the land in dispute after demolition of the illegal constructions. With these findings the plaintiff's suit was decreed. In appeal after discussing the findings recorded by the trial court the learned lower appellate court relied on the report and the map prepared by the Vakil Commissioner, paper no. 60 and 61 C2, and considered as to whether the finding of the trial court was against the material on record. With these findings the plaintiff's suit was decreed. In appeal after discussing the findings recorded by the trial court the learned lower appellate court relied on the report and the map prepared by the Vakil Commissioner, paper no. 60 and 61 C2, and considered as to whether the finding of the trial court was against the material on record. The lower appellate court while observing that the objection of the defendantappellant against the map and report of the Vakil Commissioner was rejected by the trial court by its order dated 17.5.1976 and that the report and the map were confirmed, held that reliance was correctly placed on the report and the map by the learned trial court. The lower appellate court, however, proceeded to examine the map and the report itself and came to the conclusion that "the finding of the learned Munsif about the land in dispute is justified for those portions only which lie in plot no. 29 and 27 and remaining finding of the learned Munsif is not justified....." and, as such, he held the land of plot nos. 27 and 29 only to be the Sahan of the plaintiff in which besides Sirdari rights he has perfected his title under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. The lower appellate court, as such, partly allowed the appeal and decreed the suit of the plaintiff pertaining to the land in dispute falling in plot no. 29 shown with letters SNQ and land falling in plot no. 27 shown with letters QNW and directed the defendant to remove his constructions within 30 days, falling which the constructions were to be demolished through the court. The suit of the plaintiff in as far as it related to the land shown with letters SNW was dismissed. Against this judgment and decree dismissing the suit of the plaintiff in respect to the land shown by letters SNW the plaintiff has come before this Court in the present second appeal. 3. I have heard learned counsel for the parties at some length and my attention has been drawn towards the oral and documentary evidence produced by the parties in the trial court as also towards the Commissioner's map and the site plan, showing the disputed land in red, attached to the plaint. 3. I have heard learned counsel for the parties at some length and my attention has been drawn towards the oral and documentary evidence produced by the parties in the trial court as also towards the Commissioner's map and the site plan, showing the disputed land in red, attached to the plaint. The learned counsel for the appellant urged that the disputed land shown in red also contained the land shown with letters SNW for which the learned lower appellate Court has not decreed the suit. He asserted that while plot nos. 27 and 29 were the sirdari land of the plaintiff the so called plot no. 28 was the land appurtenant to his house on which he had perfected his title by adverse possession. He has also pointed out that nowhere in the written statement the defendant ever asserted that he had purchased plot no. 28 from Ram Piarey but only said that he had purchased the disputed land from Ram Piarey. It cannot be ruled out on the basis of the oral and documentary evidence on record and in particular the commissioner's report and map that plot no. 28 was also a part of the plaintiff's Sahan. It is equally undisputed that the defendant could not bring forward any evidence to prove his title over the land in question from Ram Piarey and as such the finding recorded by the learned lower appellate court to the effect that the plaintiff was not owner of plot no. 28 was erroneous since the same settled under Section 9 of the U.P. Zamindan Abolition and Land Reforms Act with the plaintiff, he being in possession over the same on the date of vesting. The respondent's learned counsel tried to place reliance on Ex. Al which is will of Ram Saran in favour of Ram Piarey dated 28.11.1961, ExA2 dated J4.8.1969, a sale deed executed by Ram Piarey in favour of the defendant for a consideration of Rs. 400/ and two sale deeds dated 6.9.1969 marked as ExA3 and. one of which is said to be a deed correcting the boundaries shown in the saledeed Ex A2 dated 14.8.1969 and the other purchasing the vacant land for a consideration of Rs. 400/ and two sale deeds dated 6.9.1969 marked as ExA3 and. one of which is said to be a deed correcting the boundaries shown in the saledeed Ex A2 dated 14.8.1969 and the other purchasing the vacant land for a consideration of Rs. 100/ but this case was never pleaded at any stage much less any issue having been framed or any finding recorded by the trial court and they can hardly be subject matter of consideration before this Court in a second appeal under Section 100 of the Code of Civil Procedure. The trial court in its judgment has considered in detail under issues 5 and 6 the property bequeathed by Ram Saran in favour of Ram Piarey by the registered will dated 28.11.1961, Ex. Al, as also the bundaries of the property so'd by Ram Piarey in favour of the defendant by registered saledeed dated 6.9.1969, Ex. A.3, which is accompanied by a map showing the disputed land and the surrounding land which is entirely different from the land in suit. The other registered document of 6.9.1969 which is purported to be a correction of the boundaries of the saledeed has nowhere been pleaded as observed above. The situation of the disputed land is entirely different and distinct from the land sold in favour of the defendant by Ram Piarey by Ex. A3 dated 6.9.1969. The lower appellate court, as such, definitely erred in misconstruing the documentary evidence and in appreciating the oral testimony in view of the admission of the defendant himself in paragraph 1 i of the written statement that the opening of the house of the plaintiff was on northern side where he had definitely no land and as such the findings recorded by the learned lower appellate court are based on presumptions, surmises and misreading of evidence after misconstruing the pleadings of the plaintiff There is no reason to discard the reasoning adopted by the trial court. In view of the failure of the lower appellate court to appreciate the oral and documentary evidence resulting in wrong findings the judgment and decree of the lower appellate court deserves to be set aside and the judgment and decree of the trial court have to be affirmed. 4. As a result, the second appeal is allowed. In view of the failure of the lower appellate court to appreciate the oral and documentary evidence resulting in wrong findings the judgment and decree of the lower appellate court deserves to be set aside and the judgment and decree of the trial court have to be affirmed. 4. As a result, the second appeal is allowed. The judgment and decree dated 24.4.1978 passed by Civil Judge, Gonda in Regular Civil Appeal No. 63 of 1977 (Lallo Khan Versus Kanhaiya Lal) are set aside and the judgment and decree dated 29.4.1977 passed by Munsif Gonda in Regular Suit No. 63 of 1975 (Kanhaiya Lai Versus Lalloo) are hereby affirmed. In the circumstances there will, however, be no order as to costs. (Appeal allowed)