JUDGMENT Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 16.09.2009 passed by District Judge, Udham Singh Nagar in Civil appeal No.43 of 2008 whereby the said court has dismissed the appeal of the plaintiffs to the extent of the dismissal of the suit No.53 of 2006, by trial court [Civil Judge (Sr.Div.), Rudrapur, Udham Singh Nagar]. However, the decree passed by the trial court allowing the counter claim of the defendants has been set aside by lower Appellate court (District Judge, Udham Singh Nagar) and counter claim of defendants too has been rejected. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that the plaintiffs instituted suit no.53 of 2006 with the pleadings that land measuring 0.190 Hect. of plot/khasra no.48A of village Bhamrola, Tehsil Kichcha, which is shown by letter ABCD in the plaint map alongwith its boundaries, is in occupation of plaintiffs. Relating to said land they are recorded in class 1 B, in revenue record, and they (plaintiffs) are cultivating a part of it and in the rest house of plaintiffs is situated. Alleging that the defendants attempted to interfere in the peaceful possession of plaintiffs on 15.03.2006, relief of perpetual injunction was sought against them by plaintiffs. It is also stated in the plaint that plaintiffs’ house consists of three rooms, kitchen, toilet and bathroom. It is also pleaded that there is a boring for the irrigation purposes over a part of the disputed land. The measurement of the disputed land are alleged to be 56ft x 200 ft. During the pendency of the suit, an amendment was sought on 22.03.2006 stating that defendants have encroached upon a part of the disputed land forcibly and raised boundary wall, as such the relief of mandatory injunction for removal the same was sought. 4. The defendants contested the suit and filed their written statement paper no. 26A in which it is admitted that plot/khasra no.48 A measuring 0.190 Hect. of land is recorded in the name of plaintiffs in the revenue record over which they are in occupation for agricultural purposes. Rest of pleas of the plaint are not admitted. 4. The defendants contested the suit and filed their written statement paper no. 26A in which it is admitted that plot/khasra no.48 A measuring 0.190 Hect. of land is recorded in the name of plaintiffs in the revenue record over which they are in occupation for agricultural purposes. Rest of pleas of the plaint are not admitted. It is pleaded in the written statement that there is no demarcation of boundaries between land of village Bhamrola and that of Bhigwara and entire area is known as Ramnagar. It is also pleaded in the written statement that the house of the defendant no.1 is situated over the land in suit which is not shown by plaintiffs in their plaint map. It is also pleaded that family of the defendant no.1 is living for last 15 years in said house. A counter plea has been taken by defendant no.1 and it has been stated that plaintiffs in order to grab of land of defendant no.1 has filed the suit. In additional pleas, it has been pleaded that plaintiff no.1 is a man of criminal record. Counter claim has been made stating that plot no.449M, 48,73,72,46,60,61,74,332 and 353 of Ramnagar (consisting villages Bhamrola and Bhigwara) is spread out in 15 acres and most of such land has been given to the families of the Freedom Fighters. It is also alleged that defendant no.2 has been unnecessarily impleaded in the suit. In the counter claim, relief has been sought that of injunction restraining the plaintiffs from interfering in peaceful possession of defendant no.1 in respect of the house situated over the disputed land. 5. In reply to counter claim, plaintiffs have pleaded in their written statement that disputed plot no.48 A was earlier known as 5/1M which was allotted to the plaintiffs’ father who was a freedom fighter under U.P. Government Grant Act. After the death of their father, the plaintiffs are in possession of the land. Pleadings taken in the plaint are reiterated by the plaintiff in the written statement to the counter claim. It is alleged by them that defendant no.1 has illegally occupied the northern part of the disputed land during the pendency of the suit and defendants are not entitled to the relief prayed in the counter claim. 6. On the basis of the pleadings of the parties, following issues were framed by the trial court : 1. It is alleged by them that defendant no.1 has illegally occupied the northern part of the disputed land during the pendency of the suit and defendants are not entitled to the relief prayed in the counter claim. 6. On the basis of the pleadings of the parties, following issues were framed by the trial court : 1. Whether the names of the plaintiffs are recorded in the revenue record as owners in respect of plot/khasra No.48 A measuring 0.190 Hect., if so its effect? 2. Whether the defendants have encroached upon over plot/khasra No.48A during the pendency of the suit, if so its effect? and whether the plaintiffs are entitled to evict the defendants. 3. Whether the house of defendant no.1 is situated in plot/khasra no.449M and plot no.48 measuring 56ft x 200 ft for last 50 years and whether the defendant no.1 lives in said house with his family, if so its effect? 4. Whether the suit is under valued and court fee is paid insufficient. 5. Whether the counter claim is under valued and court fee is paid insufficient. 6. Whether the civil court has no jurisdiction to try the suit. 7. Whether the suit is bad in non joinder of necessary parties? If so its effect? 8. To what relief if any, plaintiffs are entitled. 7. The trial court after recording the evidence and hearing the parties, held that plaintiffs are not owners of the land in suit. It further held that the defendant no.1 did not encroach upon plot No. 48A during the pendency of the suit. It further found that house of defendant no.1 is situated in plot 449M in which he is in possession. Issue nos. 4 & 5 were decided as preliminary issues on 26.06.2007 and no body has challenged the same. However, issue no.6 was decided in favour of the plaintiffs. As to issue no.7, the trial court found that defendant no.2 has been unnecessarily impleaded as a party. With these finding, issue no.8 was decided and suit of the plaintiffs was dismissed, and counter claim of the defendants was partly allowed by the trial court directing the plaintiffs not to interfere in the peaceful possession of defendants over plot/khasra no.449 M. 8. With these finding, issue no.8 was decided and suit of the plaintiffs was dismissed, and counter claim of the defendants was partly allowed by the trial court directing the plaintiffs not to interfere in the peaceful possession of defendants over plot/khasra no.449 M. 8. Aggrieved by the said judgment and decree dated 16.07.2008 passed by Civil Judge (Sr.Div.), Rudrapur Distt: U.S. Nagar in suit no.53 of 2006, plaintiffs filed Civil appeal No.43 of 2008. Learned District Judge, Udham Singh Nagar vide his impugned judgment and decree dated 16.09.2009, after hearing the parties, dismissed the appeal affirming the dismissal of the suit by the trial court, but set aside the judgment and decree passed by trial court in respect of counter claim allowed by it against the plaintiffs. Aggrieved by said judgment and decree passed by the lower Appellate court, this Second Appeal is preferred by plaintiffs which was admitted on 21.10.2009 on the following substantial questions of law. (a) Whether the Courts below erred in law in dismissing the suit of the plaintiffs inspite of the fact that the possession of the plaintiffs over plot no.48A measuring 0.190 Hectare land was admitted by the defendants? (b) Whether the plaintiffs’ suit deserves to be decreed in view of the provision of Order VIII Rule 3 & 5 of Code of Civil Procedure as the defendants failed to file written statement in reply of para 7A, 7B and 7C of the plaint? 9. Answer to the above mentioned substantial questions of law In paragraph 1 of the written statement filed by the defendants, it is clearly admitted that land of plot No.48A measuring 0.190 Hect. is recorded in the names of plaintiffs. In para 3 of the written statement, it is also admitted that the plaintiffs are doing cultivation over the land in suit. Strangely, courts below have ignored the above admissions. Much emphasis has been given by the courts below to the fact that the plaintiffs could not show that their house is situated in plot no.48A in village Bhamrola. In this connection, what courts below have not considered is that boundaries of the disputed land pleaded in the plaint are practically admitted in the written statement and counter claim also. 10. In paragraph 5 of the plaint, boundaries of the dispute land are disclosed as under : East Pakka road Malsi marg. In this connection, what courts below have not considered is that boundaries of the disputed land pleaded in the plaint are practically admitted in the written statement and counter claim also. 10. In paragraph 5 of the plaint, boundaries of the dispute land are disclosed as under : East Pakka road Malsi marg. West Plaintiffs’ land North House of Virendra Dubey South Houses of J.P. Tewari and Sudarshan Morya. 11. In paragraph 18 of the written statement, defendant no.1 has shown boundaries of his house which is as under North House of Virendra Dubey South Plaintiffs’ land East Road for village Malsi. West Plaintiffs’ land 12. Above boundaries mentioned in the written statement perfectly tally with the map filed by the plaintiffs with the amendment application alleging that during the pendency of suit, the defendants encroached upon northern part of land in suit. As far as the plaintiffs’ ownership and possession in respect of plot 48A is concerned, copy of khatauni (record of title) paper no.10C, shows that plaintiffs are recorded as khatedar in respect of plot no.48A measuring 0.190 Hect. of village Bhamrola Tehsil Kichcha. As to the possession of Khasra (record of possession in revenue record) which is paper no.49C/8, shows that over the land of plot 48A measuring 0.190 Hect, names of the plaintiffs are recorded as Khatedar. There irrigation boring is mentioned in column no.6, and in column no.8 Abadi (residential) is also mentioned for Fasli year 1412 (calendar year 2005). 13. On behalf of respondents/defendants, it is argued that house in dispute is not situated in plot/khasra no.48A. However, this Court finds little force in the argument advanced on behalf of the defendants for the reason that evidence adduced on behalf of plaintiffs has been admitted by defendants witness DW 2 Akil who has stated in his cross examination that disputed house is situated in plot no.48. Later he stated in cross examination that he does not know that the dispute house is situated in plot no.48A. Not only, this DW 3 Kripa Shankar Pandey (defendant no.1) himself makes statement in his cross examination that he does not know in which khasra/plot disputed house is situated. 14. On the other hand, apart from PW 1 Awadhesh Pandey, PW 2 Virendra Dubey who himself is a relation of Ramesh Chaturvedi (defendant no.2) supported the plaintiffs’ case. Not only, this DW 3 Kripa Shankar Pandey (defendant no.1) himself makes statement in his cross examination that he does not know in which khasra/plot disputed house is situated. 14. On the other hand, apart from PW 1 Awadhesh Pandey, PW 2 Virendra Dubey who himself is a relation of Ramesh Chaturvedi (defendant no.2) supported the plaintiffs’ case. This witness (PW 2) Virendra Dubey has stated that earlier the land in dispute of plot no.48A was recorded in the name of Gorakhnath Pandey (father of the plaintiffs) and after his death, plaintiffs have constructed the house over it. This witness also disclosed in his cross examination that not only father of Awadhesh Pandey (plaintiff no.1) was a freedom fighter, father of defendant no.1 Kripa Shankar Pandey was also freedom fighter and he was also given land. PW 2 Virendra Dubey has admitted in first line of his cross examination that he is nephew (Bhanja) of defendant no.2 Ramesh Chaturvedi as such statement of this witness supporting the plaintiffs cannot be rejected lightly. Particularly when the same gets supported by documentary evidence on record. Even PW 3, Suresh Pandey has also admitted in his cross examination that defendant no.2 Ramesh Chaturvedi is his brother–in law, and he is not related to Awadhesh Pandey (plaintiff no.1). This witness has categorically stated and corroborated that on 22.03.2006 at about 7.030 p.m., Kripa Shankar and Ramesh Chaturvedi occupied the house in question and raised boundary wall over the disputed land. 15. As to the encroachment over the northern part of the disputed land during the pendency of the suit, paragraphs nos. 7A, 7B and 7C are added in the plaint, and the defendants have not denied the amended pleas even after being given opportunity to file additional written statement, as such the findings of the courts below recorded against the plaintiffs is perverse and against the record that defendants did not encroach upon the disputed land during he pendency of the suit. 16. It is also pertinent to mention here that there is no dispute as to the identity of the land as discussed above from the boundaries mentioned in the plaint and counter claim, maps filed by the rival parties and one prepared by the Commissioner. DW3 Kripa Shankar has stated that at two places his father was allotted the land to justify his encroachment over land in suit. DW3 Kripa Shankar has stated that at two places his father was allotted the land to justify his encroachment over land in suit. Though plea has been taken by the defendants that the defendant no.1 was living in the house situated over disputed land but it has come in cross examination of DW3 Kripa Shankar (defendant no.1) that he used to do job in Gorakhpur (U.P.) and his father used to live with him. 17. In the circumstances, after lower appellate court rejected counter claim of the defendants, there should not have been no difficulty in decreeing the suit of the plaintiffs in respect of plot no.48A, particularly when the case of the plaintiffs was fully supported by documentary as well as the oral evidence on record. The defendants have not challenged the dismissal of their counter claim by the lower appellate court which has attained finality. 18. For the reasons as discussed above, substantial questions of law stand answered in the favour of the plaintiffs, and the impugned judgment and decree as against the plaintiffs is liable to be set aside. 19. Accordingly the Second Appeal is allowed with costs. Impugned judgment and decree passed by trial court [Civil Judge (Sr. Div.), Rudrapur Distt: Udham Singh Nagar] in suit no.53 of 2006 dismissing the same, and judgment and decree dated 16.09.2009 passed by District Judge, Udham Singh Nagar in Appeal no.43 of 2008 affirming the dismissal of the suit, are hereby set aside. Suit of the plaintiffs is decreed. The defendants are directed to remove their occupation from the land shown by letter ABCD in the plaint map within a period of one month from the date of production of the certified copy of this order. Defendants are restrained from interfering with the possession of the plaintiffs over the land shown by letter ABCD in the plaint map.