High Court of Judicature at Allahabad
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Ibban v. Anwar - SECOND APPEAL No. 1267 of 1980  RD-AH 3683 (2 March 2007)
Court No. 30
SECOND APPEAL NO. 1267 OF 1980
Ibban and others - Defendant-appellants
Anwar (since deceased)
represented by Aabad Husain and others- Plaintiffs-respondent
Hon'ble Sunil Ambwani, J.
Heard Shri Raj Kumar Jain, learned counsel for appellants and Shri Mahendra Pratap for respondents.
This defendant's second appeal arises out of judgment and decree dated 20.2.1980 passed by Shri G.D. Dubey, 1st Additional District & Sessions Judge, Azamgarh in Civil Appeal No. 273 of 1979 by which he dismissed the appeal against the judgment and decree dated 24.5.1979 passed by IIIrd Additional Munsif Magistrate (Civil) in OS No. 350 of 1979 decreeing the suit, for permanent injunction and for directions to remove the 'chabutara' and 'constructions' of the defendant from the land in dispute.
The plaintiff alleged that he is the owner of the house inherited by his ancestor and that the land shown 'E, F, G, H' in the southern portion is his 'sahan' and was used by him for tethering cattle and in connection with other agriculture purposes. He was in occupation of the land as his 'sahan' since before the abolition of zamindari, and that the land had vested in him. The defendant opened a door towards west of his house and started enclosing the land by constructing a wall giving rise to the cause of action to file the suit.
The defendants-appellant claimed that the parties have common ancestor. There was an ancestral house at the place shown by letters 'A, B, C, D' in the plaint, as there was shortage of space. The house was constructed about 40 years back by the father of defendant. He used to tether his cattle towards north of this newly constructed house. There is a door towards north and west which was used to enjoy the land. It was alleged that several trees and bamboo clumps were planted over disputed land.
The parties did not lead any documentary evidence. They led only oral evidence. Two survey commissioner's were sent to submit report with regard to situation and occupation of the land. Both the courts below have recorded concurrent finding that defendant had opened the door just before filing of the suit and has raised kuchcha constructions over the land with chhapper. It was further found:- 'It is an admitted fact that both the parties hail from a common ancestor. They were formerly living jointly. It is also admitted from the cross examination of the appellants witness itself that the respondent is in possession of the land lying towards south of the land in dispute. The respondent's servants also reside in the Bardaur existing towards the land in dispute. The Ghoor, Bamboo clumps etc also exist towards west of the land in dispute. All these circumstances clearly indicate that the respondent had been in possession of the land in dispute (para 4)" ........"The appellants had not been able to fix the site of the old house. He was not able to state as to how he was able to get this land in dispute. The appellants had examined Hibban as D.W.1 and Ramraj as D.W.2. Ramraj D.W.2 had been cross examined at great length. From his cross examination it transpires that he does not know much about the share and the land of the parties. Most of the questions were answered by him in the negative. This witness had stated on page 3 of his cross examination that the land in dispute was open before it was encircled with a wall. From the commissioner's report it transpires that she said wall has been constructed by stacking bricks. In this way those construction clearly indicate that they were made a few days before filing of the suit.(para 5)" . With the aforesaid findings, the suit was decreed and appeal was dismissed.
The second appeal was admitted on ground no. 1 as substantial question of law which reads as follows:--
"1) Because the case of the plaintiff is that the land in dispute has vested in him under Section 9 of the U.P. ZA & LR Act. It is also the case of the parties that the Khandhar and the land around it including the land in dispute jointly belong to the parties being ancestral and the parties belong to the same family. Section 9 of the UP ZA & LR Act is inapplicable to the case, and therefore the finding that the plaintiff is owner of the disputed land."
Shri Raj Kumar Jain, learned counsel for appellants states that there is no finding that the land was inherited through common ancestors. The plaintiff did not use this land exclusively. There are contradictories pleas with regard to the user of the land and there is no finding that the land vested in the plaintiff under Section 9 of the UP ZA & LR Act, 1950, which was even otherwise not applicable as plaintiff claimed to be owner of the land.
I do not find any substance in the contentions. The vesting of the land appurtenant to the house used for agricultural purposes under Section 9 of UP ZA & LR Act 1951 does not require any adjudication or orders. It was established by the plaintiff that the land was appurtenant to his house and was used for agricultural purposes since before the abolition of zamindari. There was no inconsistency in the pleas. The plaintiff did not claim the disputed land to be his ancestral land. He claimed that the land settled with him under Section 9 of UP ZA & LR Act 1951. The courts below have recorded concurrent findings that defendants had opened door towards west of his house just before the filing of the suit, and in fact the plaintiff was in use in occupation of the land in dispute as 'sahan' land since before the abolition of the zamindari.
The substantial question of law as raised in the grounds of appeal does not arise for consideration in the case. On the findings on record, it was established that land was settled with the plaintiff under Section 9 of UP ZA & LR Act, 1950. The second appeal is accordingly dismissed with costs.
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