JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Sri R.B. Singhal learned Counsel for the appellant and Sri B. Dayal for the respondents. 2. This Second Appeal arises out of original suit No. 408 of 1971 filed by plaintiff for mandatory injunction in respect of scheduled land shown by letters AI, B, C & CI at the foot of the plaint. The suit was decreed by Second Munsif, Bulandshahr on 30.9.1974. The Civil Appeal No. 409 of 1974 filed by the defendants was partly allowed, and the suit of the plaintiff for mandatory injunction was decreed with costs with directions to the defendants-appellants to remove the tripal and thatch etc. from the disputed land within three months of the judgment dated 26.2.1977. The defendant have filed this appeal against the offending part of the decree by which they were directed to remove the tripal and thatch from the land in suit. 3. The second appeal was admitted on 28.3.1978 on the substantial questions of law namely whether the lower appellate Court did not take into consideration the evidence produced by the appellant and decided the case only on the basis of the judgment in suit No. 343 of 1949 particularly with the findings which had been recorded by the appellate Court on the question of title. 4. The plaintiffs pleaded that they were owners of the house shown by the letters A, AI, CIB, in the plaint map, as also the disputed land which is appurtenant to the said house towards east situate in Mohalla Sogiabara of Qusba Sikandrabad with which the defendants have no concern. There was a grave on the land. The defendants put up a thatch over the disputed land. They also demolished the grave in the month of April, 1971 with intention to take possession. The defendants, on the other hand, alleged that the plaintiffs are not the owners of the disputed land. The defendants were tenants of one Abdul Latif and Omar who were ‘domes’ by caste. About 50 years ago Abdul Latif executed a sale deed in respect of his share and Omar mortgaged the remaining half in favour of the defendants and thus the defendants became absolute owner about 50 years ago, and are in possession of the land. The defendants were tenants of one Abdul Latif and Omar who were ‘domes’ by caste. About 50 years ago Abdul Latif executed a sale deed in respect of his share and Omar mortgaged the remaining half in favour of the defendants and thus the defendants became absolute owner about 50 years ago, and are in possession of the land. There was no grave on the disputed land, rather the previous owners had effaced it, and only certain bricks were retained on the spot, so as to continue the names of the tomb. The grave lay in the house of the plaintiff towards north about 5 inside it. The bhatti was an old one, and that the suit was filed only to harass the defendant. 5. The trial Court held that the plaintiffs were owners of the disputed land and were in possession on it till October to November, 1971, when the defendant put their thatch and bhatti over it, and thus decreed the suit. 6. The appellate Court found that the plaintiffs had filed original sale deed dated 6.1.1964 executed by Khadim Hussain, special attorney, and Kudrat Ullah Khan and Ahmad Jam Khan in favour of Bhullan, the purchaser of the disputed land to the extent of 2/3 share. The sale deed filed by the plaintiff on 1.12.1914 (Ext.-3) was executed by Badi Ullah Khan in favour of Jahar son of Sharfoo in respect of the disputed property in favour of Bhullan. The boundary of these sale deeds tallied with the boundary of disputed property. The plaintiff also filed a copy of the judgment in Original Suit No. 343 of 1949 : Allah Bux (predecessor of the defendant) v. Kundan Lal. This judgment shows that the defendants father had filed a suit against Kundan Lal, asserting himself to be owner of the land. The same land is included in this suit. The defendants predecessor relied upon the sale deed dated 12.6.1945 executed by Omar Khan in favour of the defendant No. 1 in the suit. The defendants further relied upon two mortgage deeds dated executed by Abdul Hamid in favour of Allah Bux father of defendant No. 2 dated 9.12.1946. The defendants predecessor also relied upon the mortgage deed dated 23.11.1942 executed by Abdul Hamid in favour of Allah Bux the predecessor of defendant No. 2. 7. The defendants further relied upon two mortgage deeds dated executed by Abdul Hamid in favour of Allah Bux father of defendant No. 2 dated 9.12.1946. The defendants predecessor also relied upon the mortgage deed dated 23.11.1942 executed by Abdul Hamid in favour of Allah Bux the predecessor of defendant No. 2. 7. The Judgment in O.S. No. 343 of 1949 revealed that the question of title was involved in the suit. It was held that the documents relied upon by the defendants’ predecessor did not confer any title to the defendant No. 1 and Allah Bux as their predecessor had no title to transfer the disputed land. The defendants filed a copy of the judgment dated 7.4.1951 passed in appeal against the judgment in suit No. 343 of 1949. The findings with regard to title were not reversed and were left in tact. There was no evidence to show that the predecessors of the defendants had any right or interest in the disputed land. The appellate Court thus confirmed the findings of the trial Court that the plaintiffs were the owners of the disputed land. It, however, found that the bhatti and tripal belongs to the defendant, and that on the date of filing of the suit the plaintiffs were not in possession. The relief for possession was not sought by the plaintiff. The appellate Court also found that the plaintiff did not seek the relief of prohibitory injunction and since the plaintiffs were not in possession, the proper remedy for the plaintiffs was to file a suit for mandatory injunction. The appellate Court thus partly allowed the suit with direction to defendants/appellants to remove tripal, thatch etc. from the disputed land. 8. Sri R.B. Singhal insisted on arguing the question framed at the time of filing of the appeal. He did not raise any argument that until possession was sought, the suit for mandatory injunction could not be decreed. I have, therefore, confined the consideration of this second appeal only on the question framed by this Court namely whether the lower appellate Court did not take into consideration the evidence produced by the appellant and decided the case only on the basis of the judgment in O.S. No. 343 of 1949. 9. I have, therefore, confined the consideration of this second appeal only on the question framed by this Court namely whether the lower appellate Court did not take into consideration the evidence produced by the appellant and decided the case only on the basis of the judgment in O.S. No. 343 of 1949. 9. The O. S. No. 343 of 1949 was filed by the defendant’s father against Kundan Lal and others, asserting himself to be the owner of the land, which is admittedly the disputed land. The sale deed dated 12.6.1945 executed by Omar Khan in favour of the defendant No. 1 and two mortgage deeds were executed by Abdul Hamid. The Courts below have held that the documents relied upon by the defendants’ predecessor did not confer any title on defendant No. 1 and Allah Bux their predecessors had no title to transfer the disputed land. The appellate Court as such rightly relied upon the findings in suit No. 343 of 1949 to discard defendants case. At the same time it also affirmed the finding of the trial Court that the plaintiffs were the owner of the land. The trial Court also considered the documents of title produced by the plaintiff namely the sale deed dated 6.1.1964 executed by Kaidim Hushan, special attorney and Kudrat Ullah Khan and Ahmad Jam Khan in favour of plaintiff’s father Bhullan. He has purchased 2/3 share by the sale deed and remaining vide sale deed dated 1.12.1914 by Badi Ullah Khan in favour of father of Bhullan. The boundaries in these documents tallied with the disputed property. 10. The trial Court and the appellate Court, found that the plaintiff has proved his title vide sale deed dated 6.1.1964 and 1.12.1914. The discussion of the judgment of O.S. No. 343 of 1949 was not to attract bar of the principles of res-judicata, but to consider the defendant’s evidence as a whole. 11. The Second Appeal, as such, is concluded by findings of fact and is accordingly dismissed with costs against the defendants throughout. Appeal Dismissed. ———