JUDGMENT 1. This is a plaintiff's second appeal. The plaintiff filed a suit for possession of a part of plot No. 70 (area 10 acres) by removal of the troughs and pegs for tying cattle put up by the defendant-respondent over it. His case was that he was the Sirdar of the plot and was entered as such in the revenue records. The defendant, without any right encroached upon a portion of that plot as aforesaid. He was not prepared to remove the encroachment. Hence the necessity of the suit. 2. The defendant took the plea that he was in possession of the disputed portion, having put up the construction long ago. The disputed portion, according to his case, did not form part of plot No. 70 at all. Some other pleas were also taken. The trial court deputed a Commissioner to make a spot inspection and from the report of the Commissioner (paper No. 22C) and the map (paper No. 23C) it was found that the impugned constructions lay in plot No. 70 and encroached upon an area about 12'x12' by the side of the defendant's Ghari. The report and the map were subsequently conformed as well. 3. Several issues were framed by the trial Court on the pleadings of the parties. On the principal finding, recorded on consideration of the evidence on record, that the disputed constructions were of recent origin and lay in plot No. 70 of which the plaintiff was a sirdar, the trial Court decreed the suit. It directed the defendant to remove the constructions to the extent they lay in plot No. 70 as shown by red colour in the map (paper No. 23C) which was directed to form part of the decree and to restore possession thereof to the plaintiff failing which the plaintiff was entitled to recover possession through court. The defendant, feeling aggrieved by the decree took the matter in appeal. 4. The lower appellate Court, on re-appreciation of evidence, affirmed the finding of the trial court that the disputed constructions were of recent origin and further that they lay in plot No. 70. It however, took the view that there were other undisputed constructions over plot No. 70 of long duration to which the plaintiff had not objected. 4. The lower appellate Court, on re-appreciation of evidence, affirmed the finding of the trial court that the disputed constructions were of recent origin and further that they lay in plot No. 70. It however, took the view that there were other undisputed constructions over plot No. 70 of long duration to which the plaintiff had not objected. Further that in spite of the fact that the plot was recorded in the name of the plaintiff as sirdar, in reality it had assumed the character of abadi land. The plaintiff, according to the lower appellate Court, had abandoned the plot and that even though the rest of the plot was being put to agricultural uses as claimed by the plaintiff for producing vegetables, the small portion in dispute lying by the side of the defendant's Ghari "could not have been put to such use" by the plaintiff. The lower appellate Court was further of opinion that there was a solitary entry in the khatauni pertaining to the year 1375 fasli in which the plaintiff had been shown to be the sirdar of the plot in suit. On these findings, the lower appellate Court reversed the decree of the trial court and dismissed the plaintiff's suit. Hence the present second appeal. 5. It has been urged by Sri Iqbal Ahmad appearing for the appellant that the lower appellate Court has dismissed the plaintiff's suit by recording findings which were not open to it having regard to the relevant provisions of the U.P. Zamindari Abolition and Land Reforms Act. Its decree could not, therefore, be sustained. Besides, It is based upon misreading of the documentary evidence on record as well. The first error which has been pointed out is that the lower appellate Court has erroneously mentioned that the plaintiff had filed a single extract of Khatauni pertaining to the year 1375 fasli (Ext. 1) which records No. 70 in the name of plaintiff as its sirdar. A perusal of this document bears out the submission of Sri Iqbal Ahmad. Exhibit I is an extract of khatauni for fasli years 1373 fasli to 1375 fasli. 6. The next error which has been pointed out by Sri Iqbal Ahmad in the judgement of the court below is that the court had declared that the plot in question, though recorded as sirdari was in fact, abadi land. Exhibit I is an extract of khatauni for fasli years 1373 fasli to 1375 fasli. 6. The next error which has been pointed out by Sri Iqbal Ahmad in the judgement of the court below is that the court had declared that the plot in question, though recorded as sirdari was in fact, abadi land. According to the submission of Sri Iqbal Ahmad, such declaration could not be given by the court below and that the mere fact that the land was covered by buildings would not take it out of the definition of land as contained in Section 3 (13) of that Act. That exemption was provided for in the U.P. Tenancy Act, 1939 wherein the definition of land in Section (10) contained a proviso to the effect that it did not include land for the time being occupied by buildings or appurtenant thereto other than buildings which were improvements. It has been pointed out with reference to the reasoning of the learned Judge of the lower appellate Court that he was under an impression that merely because some buildings stood over the land in suit, it ceased to be agricultural holding and became an abadi site. For purposes of the disposal of this appeal, however, it is not necessary to express any concluded opinion about this submission of Sri Iqbal Ahmad for it is clear from the judgement of the court below that it was under mistaken impression that the plot in suit was lying abandoned by the plaintiff and that even though it was largely put to agricultural use, the small piece of plot in dispute was not being so put to any such use. 7. The main question which fell for determination by the court below was whether the plot, though recorded as sirdari of the plaintiff, could be treated to have been put to a use other than that connected with agriculture, horticulture or animal husbandry. The right of a sirdar in a holding or any part thereof could be held to have been extinguished only where the holding had been declared as abandoned in accordance with the provisions of Section 186 of the Act or had been found to be used in contravention of the provisions of the Act. The right of a sirdar in a holding or any part thereof could be held to have been extinguished only where the holding had been declared as abandoned in accordance with the provisions of Section 186 of the Act or had been found to be used in contravention of the provisions of the Act. There is no finding by the lower appellate Court that Plot No. 70 had been declared to have been abandoned by the plaintiff in accordance with Section 186 of the Act. The court below has not referred to any evidence on record, for observing that the piece of land in dispute could not have been put to agricultural uses by the plaintiff. In the absence of any finding arrived at in accordance with law to the effect that the plaintiff, as sirdar of plot No. 70, had used the plot in dispute in contravention of the provisions of the U.P. Zamindari abolition and Land Reforms Act, the court below could not have proceeded to take the view that he had ceased to be the sirdar of the plot or the portion in dispute thereof. 8. It has been contended on behalf of the respondents that the defendants' definite case was that the plot had become abadi site prior to the coming into force of the U.P. Zamindari Abolition and Land Reforms Act so that the finding of the court below that it had become abadi site since long ago should be construed to mean that it had become an abadi site even before the enforcement of U.P. Act No. 1 of 1951. It is not possible, however, to read into the judgement of the lower appellate Court a finding that the plot in suit had assumed the shape of an abadi site prior to the enforcement of U.P. Act No. 1 of 1951 in the absence of any definite finding about it with reference to the evidence on record. It has to be borne in mind that the suit was filed in the year 1968 so that the term "long ago" used by the lower appellate Court would not necessarily mean a period anterior to the enforcement of U.P. Act No. 1 of 1951. 9. Section 190 of U.P. Act No. 1 of 1951, in so far as it is material, read thus, at the relevant time:- "190. 9. Section 190 of U.P. Act No. 1 of 1951, in so far as it is material, read thus, at the relevant time:- "190. Extinction of the interest of a sirdar - (1) Subject to the provisions of Section 172, the interest of a sirdar in a holding or any part thereof shall be extinguished: (a) ...... ...... ...... (b) when the holding has been declared as abandoned in accordance with the provisions of Section 186; (c) ...... ...... ...... (cc) when the holding or part thereof has been transferred, let out or used in contravention of the provisions of this Act; (d) to (f) ...... ...... ......" 10. Under Section 146 of the Act a sirdar had, subject to the provisions of the Act, the right to exclusive possession of all land comprised in his holding and to use such land for any purpose connected with agriculture, horticulture or animal husbandry which included pisciculture and poultry farming. The right of the plaintiff could only be said to have been extinguished in plot No. 70, of which he was recorded a sirdar, in case it was found that it had been declared in accordance with Section 186 that he had abandoned the same or that he had transferred, let out or used the same in contravention of the provisions of the Act. The case is not one of transfer or letting out of any part of plot No. 70 by the plaintiff. The submission on behalf of the defendant in this Court is that from the existence of the buildings on plot No. 70 it could be inferred that the holding had been used by the plaintiff in contravention of the provisions of the Act. The existence of some building over the plot could not, by itself, lead to the conclusion that the plaintiff had used his sirdari plot in contravention of the provisions of the Act. Buildings put up by the sirdar in connection with one of the operations for which he has the right to use his holding under Section 146 of the Act would not be a sue by him of his holding in contravention of the provisions of the Act. Buildings put up by the sirdar in connection with one of the operations for which he has the right to use his holding under Section 146 of the Act would not be a sue by him of his holding in contravention of the provisions of the Act. There is no determination by the court below about the fact as to whether the building which has been put up over it by the plaintiff is not in connection with one of the purposes for which he could use his holding. The court below, as noticed earlier, has only proceeded upon the assumption that the existence of some buildings over the plot for a long time indicated that it had assumed the character of abadi "long ago". It has not, as already mentioned, referred to any evidence on record for its observation that "the portion of plot No. 70 in dispute which will be about 12'x12' by the side of the defendant's Ghari could not have been put to such use by the plaintiff." The court below has not approached the matter in accordance with law. 11. Since the decree of the trial court in favour of the plaintiff has been set aside by the lower appellate Court, on legally unsustainable grounds, it is necessary in the interest of justice to require the lower appellate court to go into the matter afresh in accordance with law. The decree of the lower appellate Court is set aside and the case remanded to it for hearing and decision afresh in accordance with law in the light of the observations contained in this judgement. The lower appellate Court shall dispose of the matter within four months of the receipt by it of the record of the case which shall be transmitted to it without delay. During the pendency of the appeal before the lower appellate Court, the decree of the trial court shall not be put into execution. Learned counsel for the parties have stated that the parties shall not seek unnecessary adjournment before the lower appellate court to make it difficult for that court to decide the matter within the time indicated above. Costs shall abide the result.