JUDGMENT B.D. Agrawal, J. - This is defendants appeal. 2. The dispute in this case relates to a Chabutara shown by letters BCDI in sketch map appended to the plaint. The allegations of the plaintiff, briefly, are that this Chabutara has been appurtenant to their house and that it is to be deemed settled with them under Section 9 of U.P. Act No. 1 of 1951 since they have been in continuous possession of the same. The defendants resisted the suit pleading that the plaintiffs did not have title to the said Chabutara nor have they been in possession thereof. The defendants contended their own title and continuous possession over the said Chabutara. 3. The trial court decreed the suit being of the view that the Chabutara in question belongs to the plaintiffs and have been in possession thereon. The appeal filed against that decree by the defendants was dismissed on merit by the Additional District Judge on January 4, 1975. 4. Learned counsel for the defendants-appellants urged that the 'Chabutara belongs to the defendants and that in the earlier suit which the plaintiffs had instituted in respect of the house they did not indicate the Chabutara as belonging to them, it is pointed that earlier suit was instituted by the plaintiffs against third persons. From the fact that the Chabutara was not depicted in the plaint in the earlier suit it is sought to be inferred that the plaintiffs did not have the right, title or interest over the same. The contention is that in case the plaintiffs had possession over the Chabutara at that time, there is no good reason why they have not included the same in that proceedings. It seems to be overlooked that the Chabutara in question did not form the subject matter of the controversy in that earlier suit. There is no inconsistency involved in having raised. In that suit a right to the house without claiming title in respect of the Chabutara. It seems that there was no cause of action to the plaintiffs in that earlier suit with respect to that Chabutara and hence there could not be a point including the Chabutara in that suit. From the fact, therefore, that this Chabutara was not depicted in the plaint it cannot be said that the plaintiffs bad no possession over the same. From the fact, therefore, that this Chabutara was not depicted in the plaint it cannot be said that the plaintiffs bad no possession over the same. The evidence adduced in this case also considered by the courts below suggests clearly that the possession over the Chabutarahas been that of the plaintiffs and that this has been appurtenant to their building. In view of Section. 9 of the U. P. Act No. 1 of 1951 it is to be deemed settled with the plaintiffs-respondents. 5. Consequently, the appeal fails and is dismissed with costs.