JUDGMENT Deoki Nandan, J. - This is a plaintiff's Second Appeal in a suit for possession over a plot of land after removal of a Kothari and a hand-pump. The plaintiff, who died during the pendency of the Second Appeal in this Court and is now represented by his heirs and legal representatives, purchased the land in suit under a sale-deed dated the 18th October, 1944 for Rs. 1,600/- from Sheikh Mohammad Ibrahim. The area of the land was 723 yards and 14 Girah. It was enclosed by brick foundations. According to the plaintiff's case, he lived in the city of Moradabad and was old and infirm. The defendant wanted to take forcible and unlawful possession of the land and dug out and threw away the bricks of the foundation on the land on the 8th April, 1963. The plaintiff could not, however, immediately file a suit because of his old age, infirmity and illness. Taking advantage of the same, the defendant erected a small thatched hut and a hand-pump and let out the hut to defendant No. 2. The suit was filed on the 31st July, 1973. 2. The first defendant contested the suit. He denied the plaintiff's claim and pleaded that, after digging foundations, he had erected a boundary wall and a Kothari on the land in suit in April, 1963 and had also cutup a hand-pump and let out the Kothari to defendant No. 2. The plaint, as originally filed, did not contain any specification of the boundaries of the land, nor any other description of it by plot numbers. On objection being raised by the defendant in his written statement, and specification of the boundaries of the land in his own possession, the plaintiff amended the plaint by specifying the boundaries of the land. The defendant claimed title to the land by purchase from Rajendra Singh and Patta from the Gaon Samaj, Other technical pleas were also raised. 3. The following are the issues, on which the parties went to trial : - "1. Whether the plaintiff is the owner of the land in suit ?" "2. Whether the defendant No. 1 has committed acts alleged in paragraph no. 4 of plaint on the land of the plaintiff ?" "3. Whether the suit is barred by principle of estoppel ?" "4. To what relief, if any, is the plaintiff entitled ?" 4. Whether the plaintiff is the owner of the land in suit ?" "2. Whether the defendant No. 1 has committed acts alleged in paragraph no. 4 of plaint on the land of the plaintiff ?" "3. Whether the suit is barred by principle of estoppel ?" "4. To what relief, if any, is the plaintiff entitled ?" 4. On an appraisal of the evidence on the record, the trial court held on issue No. 1, that the plaintiff was not the owner of the land in suit: on issue No. 2, that the defendant No. 1 had raised the construction on the land owned by him and the plaintiff had no right to object to the same ; on issue No. 3, that the suit was not barred by the principles of estoppel ; and holding, on issue No. 4, that the suit was liable to be dismissed with costs to defendant No. 1, it dismissed it accordingly. 5. On appeal, the lower appellate court observed that the only material point to be seen was whether the plaintiff was owner of the land in suit it then referred to the sale-deed dated the 18th October, 1944 in favour of the plaintiff, Ext. 1. and also to a sale-deed dated the 14th January, 1944, Ext. 2, and held that the land purchased by the plaintiff had foundations of pucca bricks around it and a wall towards west. According to the lower appellate court, neither the depth of the foundations nor tie height of the well to the west could be ascertained, and, even if the recital in the sale-deed about the existence of the foundations and the wall was taken to be correct, the property could be described only as an open piece of land with a wall on the west. Further, according to the lower appellate court, the plaintiff Sukhanand as P.W. 1 admitted that there was no Khandhar on the land in the year 1952 and that there was only a foundation. Nor did the plaintiff disclose the nature of his possession over the land. Further, according to the lower appellate court, the plaintiff Sukhanand as P.W. 1 admitted that there was no Khandhar on the land in the year 1952 and that there was only a foundation. Nor did the plaintiff disclose the nature of his possession over the land. The plaintiff was a resident of Moradabad city, and, although the village where the land in suit is situate, was only one-and-a-half mile away from Moradabad, yet there was no evidence to show that the plaintiff had any agricultural land in the village or was in occupation of the land in suit for the beneficial enjoyment of any other land ; nor was there any evidence to show that the plaintiff had any Gher on the land or tethered cattle or stored manure etc., thereon. According to the lower appellate court: "It would, therefore, be deemed that the land was lying vacant before the abolition of the zamindari. The existence of a wall or foundation, if any, on the disputed land could not make the disputed land as building and as the provision of Section 9 of the U.P. Zamindari Abolition and land Reforms Act could not be attracted. The land being an Uftada land vested in the Gram Samaj after the abolition of the Zamindari. The plaintiff, on the basis of Ex. 1 at the most became the proprietor of the disputed land..................even........ then because there was no building or Gher on the disputed land, the rights of the plaintiff came to an end after the enforcement of the U.P. Zamindari Abolition and land Reforms Act." The defendant, on the other hand, was found on the basis of the document on the record to have obtained part of the land from the Gram Samaj and also to have purchased plot No. 367-B from Rajendra Singh. Vide Ext. A-11. The plaintiff's appeal was accordingly dismissed by the lower appellate court. When the appeal came up for hearing before a learned Single Judge of this Court on the 11th April, 1968, he formulated the following two issues and remitted them for a finding to the lower appellate court on the material already on the record :- "(1) Was there any construction on the land in dispute at the date of vesting ? If so, what was its nature ?" "(2) Did any tree mentioned in the sale-deed of the year 1944 in favour of the plaintiff exist at the date of vesting ?" 6. On the issues so remitted, the lower appellate court returned the finding on issue No. 1, that only foundations existed around the land in suit on the date of vesting and that these foundations were not of the nature of building or Gher ; and on issue No. 2, that the tree mentioned in the sale-deed of the year 1944 in favour of the plaintiff existed on the date of vesting. 7. The second Appeal was again heard by the same learned Judge of this Court on the 31st January, 1969. The learned Judge noted that it was agreed before him by the parties that before disposing of the appeal a map of the locality should be prepared. The learned Single Judge accordingly directed the lower appellate court to appoint a Commissioner to go to the spot and prepare a map of the locality indicating the disputed property according to the boundaries given in the plaint with reference to the title deed of the plaintiff of the year 1944 and also to plot out, plots Nos. 358/2 and 357-B, claimed by the defendant, Mangal Sen on that map. This Court further directed that if it is found after the preparation of the map that the disputed property comprises plot No. 357-B as well, the lower appellate court will give opportunity to the parties to prove whether Plot No. 357-B was the bhumidhari holding of Rajendra Singh or not and in that eventuality the lower appellate court shall, having allowed the parties an opportunity to lead evidence on that point, record its finding thereon. The finding returned by the lower appellate court in pursuance of the said order is dated the 20th August, 1976. The maps prepared by the survey commissioner are Papers Nos. 150 and 151-Ga and were submitted with the report 148-Ga dated the 14th May, 1969. The map showed that part of the property in suit fell in plot No. 357-B. The objections to the report and the map were rejected and they were confirmed. Opportunity was given to the parties to lead evidence and in the finding returned by the lower appellate court, it held that Rajendra Singh was bhumidhar in plot No. 357-B. 8. The map showed that part of the property in suit fell in plot No. 357-B. The objections to the report and the map were rejected and they were confirmed. Opportunity was given to the parties to lead evidence and in the finding returned by the lower appellate court, it held that Rajendra Singh was bhumidhar in plot No. 357-B. 8. A perusal of the map prepared by the Commissioner shows that about one-half of the land in suit lies in plot No. 357-B and about half of it in plot No. 358/2. The finding returned is that plot No. 257-B was the bhumidhari holding of Rajendra Singh Ext. A-1 1 shows that plot No. 357-B was purchased by the defendant from Rajendra Singh. The trial court has found, on an appraisal of the evidence on the record, that plot No. 358/2 belonged to the Gaon Samaj, and that a part of it was allotted by the Gaon Samaj to the contesting defendant it is not possible to interfere with these findings as they are based on evidence and learned counsel could not establish that they suffer from any error of law. 9. Learned counsel for the appellant, however, urged that the finding of the lower appellate court that the land in suit was not a building site and, therefore, vested in the Gaon Sabha was erroneous; in as much as it is established from the evidence on the record that, the land in suit was surrounded by foundations of brick walls. One case relied upon by the learned counsel was that of Iallu v.Gaon Samaj ; Second Appeal No. 2132 of 1967 decided on the 13th November, 1968, in which the learned Single Judge, who had twice remitted the issues in the present case, held, with reference to plot No. 358/2 of village Majholi of Pargana and district Moradabad, which was involved in the present suit also, that the land was a building site and must be deemed to have been settled with Narain who was the vendor of Iallu the appellant in that case. The lower appellate court had, in that case, held that the existence of the foundation on the land, which was transferred to Iallu, did not amount to existence of constructions on the land on the date of vesting, and the land, therefore, vested in the Gram Samaj. The lower appellate court had, in that case, held that the existence of the foundation on the land, which was transferred to Iallu, did not amount to existence of constructions on the land on the date of vesting, and the land, therefore, vested in the Gram Samaj. This Court found that a construction had been raised on a part of the foundation on one-half of the land, while, on the remaining foundation, no construction had been raised. On this finding, this Court held that the part of the land, over which there were no construction, was appurtenant to the construction on the other part. This judgment of the Court is dated the 13th November, 1968, and it was held therein that no part of plot No. 358/2 vested in the Gram Samaj. From the map prepared by the Commissioner in the present case, apart of the plot No. 358/2 is the land in dispute in the present case also, but that part has been proved to have been taken by the contesting defendant from the Gaon Samaj. The plaintiff has not established by any thing on the record that he had any title to or was in possession of plot No. 358/2. According to the facts narrated in the said judgment of this Court, the area of plot No. 358 was only 408 square yards. The plaintiff claimed to have purchased his land from Sheikh Mohammad Ibrahim who is said to have purchased it from Masih Charan : but, so far as plot No. 358/2, which was in dispute in Iallu's case, was concerned, it appears from the judgment of this Court that the area 408 Square yards of plot No. 358/2 was sold to Narain. It does not, therefore, appear that the plaintiff could lay any claim to any title to plot No. 358/2, which was the subject matter of dispute in Iallu's case ; on the basis of the sale-deed (Exts. 1 and 2). 10. Learned counsel then contended that the mere existence of foundations of brick boundary walls was sufficient to constitute a building within the meaning of Section 9 of the U.P. Zamindari Abolition and Land Reforms Act. He first relied upon the said judgment in Illau's case. 1 and 2). 10. Learned counsel then contended that the mere existence of foundations of brick boundary walls was sufficient to constitute a building within the meaning of Section 9 of the U.P. Zamindari Abolition and Land Reforms Act. He first relied upon the said judgment in Illau's case. As observed above, that judgment proceeded on the basis that a part of the land had been constructed upon and the remaining part of it was appurtenant to the construction raised. The next case cited by the learned counsel was that of Mahesh Chandra v. U.P. State, 1963 ALJ 439. That was a case of Gher. It has not been shown to me that the land claimed to have been purchased by the plaintiff could be said to be a Gher. The third case relied upon by the learned counsel for the plaintiff-appellant was case of Bechanram Singh v. Rajaram 1967 RD 297 . That was a case of a house in a dilapidated condition in Abadi. Where the owner had a proved intention of rebuilding. In the present case, as noticed above, the plaintiff had himself admitted in his statement that there was no Khandhar on the land. 11. Furthermore, the discussion of the evidence and the facts of the case in the trial court's judgment on issue No. 1, would show that the plaintiff was not successful in identifying the land purchased by him under Ext. 1 with the land in suit. To begin with the plaintiff did not specify the boundaries of the land in suit. He specified them later on by an amendment of the plaint. Even so, the boundaries so specified by him do not tally with the boundaries of the land as specified in the statement under order 10 rule 2 of the Code of Civil Procedure, that was made by the plaintiff on the 27th November, 1963 vide paper No. 20-A-2. I am of the opinion that, for the reasons given by the trial court, the finding arrived at by it that the land in suit did not belong to the plaintiff is correct. 12. The appeal fails and is dismissed ; but, as no one appeared for the respondent at the hearing of the appeal, there will be no order as to costs.