JUDGMENT Honble Mrs. Poonam Srivastava, J.—Heard Sri Sankatha Rai, learned counsel for the Defendant­appellants and Sri R.N. Singh Senior Advocate, assisted by Sri Rajeev Kumar Srivastava, counsels for the Plaintiff-respondents. 2. This is defendants’ second appeal arising out of a decree dated 16.4.1982 passed by the District Judge, Mirzapur in Civil Appeal No. 186 of 1980 confirming the judgment and decree dated 27.8.1980 passed by the 1st Additional Munsif, Mirzapur in Suit No. 322 of 1979. 3. The suit was instituted with the relief for perpetual injunction against the defendant-appellants restraining them from interfering with the physical possession over the land shown by Cha, Chha, Ga, Gha (hereinafter referred to as the disputed land) and also to restrain the appellants from raising any construction over the disputed land. The other reliefs were that in the event, it is found that any construction is raised over the disputed land, the same may be directed to be demolished and the plaintiffs be put in possession. The disputed property is situated in village Babura, Tappa 96, Pargana Kantit, District Mirzapur. Boundaries were given at the foot of the plaint. The plaintiffs stake their claims by pleadings that on 13.10.1970 they purchased the land in dispute from one Bankteshwar Dutt Dubey vide registered sale deed dated 13.10.1970 and since then they are owners in possession and the defendant-appellants have no claim or concern whatsoever. Further allegation was that on 15.10.1979 the plaintiffs sent a registered notice to the defendants but the notice was returned. The defendant-appellants once again tried to dispossess the plaintiffs on 22.10.79 and cause of action arose on the said date. The Defendant-appellant Mata Prasad Singh filed written statement denying the plaint allegation. The stand of the defendant­appellant in paragraph 3 of the additional plea was that Bankteshwar Dutt Dubey was neither owner of the disputed land nor he had any right to execute the sale deed. The plaintiffs are not in possession over the disputed land after the so called sale deed in their favour executed by Bankateshwar Dutt Dubey. The case of the defendant-appellants was that the entire disputed land was owned by one Raghav Prasad Singh and Dhaneshwar Singh. There was a mutual partition between them and the property in dispute came in the share of Raghav Prasad Singh who executed a registered sale deed on 19.12.1966 in favour of defendants and since then they are in possession. The case of the defendant-appellants was that the entire disputed land was owned by one Raghav Prasad Singh and Dhaneshwar Singh. There was a mutual partition between them and the property in dispute came in the share of Raghav Prasad Singh who executed a registered sale deed on 19.12.1966 in favour of defendants and since then they are in possession. The defendants have constructed Mandai, Nad, Khoonta, Charni, Compost Pit, Mandavi and Madha and also installed Chaff Cutter Machine. The land is also used by them for spreading cow dung cakes and various other households work connected with agricultural purposes. The claim of the defendant-appellants was that Bankateshwar Dutt Dubey had no concern with the land. Raghav Prasad Singh constructed a house after it fell down on the disputed land. Initially it was Khandhar of Raghav Prasad Singh. The case set up by the plaintiffs that the defendant­appellants tried to take forcible possession was also denied. The defendant Kallu Singh also filed a separate written statement which forms part of the record. The trial Court framed four issues which are as under : (1) Whether the plaintiffs are owner in possession of house shown by letter Ka, Kha, Ga, Gha ? (2) Whether the suit is under valued ? (3) Whether the court-fee paid is insufficient? (4) What relief plaintiffs is entitled. 4. Oral as well as documentary evidence were led by both the parties. The trial Court decreed the suit and findings of the trial Court were confirmed by the lower appellate Court. Both the judgments and decree have been challenged in the instant second appeal on a number of ground as well as several substantial questions of law were raised in the memo of appeal which are as under : (1) Whether a zamindar of the village can be owner of the land in village abadi even after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act? (2) Whether the plaintiffs or his vendor, Bankateshwar Dutt Dubey who was not owner of the land in dispute after the enforcement of UP. Zamindari Abolition and Land Reforms Act in as much as they never submitted, pleaded and proved themselves to be owners of the land in dispute under Section 9 of the UP. Zamindari Abolition and Land Reforms Act? Zamindari Abolition and Land Reforms Act in as much as they never submitted, pleaded and proved themselves to be owners of the land in dispute under Section 9 of the UP. Zamindari Abolition and Land Reforms Act? (3) Whether the Courts below acted illegally and without jurisdiction in decreeing the plaintiffs’ suit placing the burden of proof on the defendants to prove their title? (4) Whether the courts below ignored the settled principles of law when the plaintiffs’ suit for demolition and possession etc., was filed irrespective of the fact that the defendants proved their title? (5) Whether the plaintiffs’ suit was barred by time? (6) Whether the land in dispute was identifiable on the spot? (7) Whether the findings of the Courts below are vitiated on account of misconception of the title deeds? (8) Whether the findings of the Courts below are based on misreading of material evidence on record and are vitiated? However, this appeal was admitted on 5.11.1982 on a single substantial question of law which is quoted below : (1) Whether the plaintiffs or his vendor, Bankateshwar Dutt Dubey who was not owner of the land in dispute after the enforcement of U.P. Zamindari Abolition and Land Reforms Act inasmuch as they never submitted, pleaded and proved themselves to be owners of the land in dispute under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act? 5. Learned counsels for the respective parties limited their arguments to the only substantial question of law on which the appeal is admitted. I proceed to decide this appeal on this solitary substantial question of law. 6. Learned counsel for the appellants has submitted that the claim of the plaintiff-respondents is based on the fact that they had purchased the land vide registered sale deed on 13.10.1970 executed by Bankateshwar Dutt Dubey and they are in possession. The description of the property is detailed in the sale deed. The statement of PW-2 Banakteshwar Dutt Dubey son of Ram Dhananjay Dubey, vendor of the plaintiffs who was examined as PW 2, has been placed before me in support of the argument of the learned counsel for the appellants that the vendor, though was born in village Babura but at present he is residing in village Semari since last 30-32 years and he admitted that he does not remember the name of the witnesses of the aforesaid sale deed. After looking of the sale deed, he was able to give the name of the witnesses of the sale deed and the said sale deed is Exhibit-1. The emphasis of the learned counsel for the appellants is that PW-2 admitted in his cross-examination that whenever he comes to the village, he stays with some Pattidar and the disputed land was abadi where he used to raise a Chhappar and he used to tither of cattle. Consequently on the advent of U.P.Z.A. & L.R. Act, the land stood settled under Section 9 of the Act and thus he became the owner. Learned counsel has emphatically disputed the fact that there is any abadi or some construction over the land in dispute. 7. I have examined the statement as well as documentary evidence such as sale deed and other revenue records which were adduced in evidence in the Courts below. Section 9 of the U.P.Z.A. & L.R. Act is quoted below : "Section-9. Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers thereof.—[All wells,] trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed." 8. In view of the case set up by the plaintiffs, it is evident that only question remains to be decided in the instant second appeal is whether the plaintiffs could avail the benefit of Section 9 of the aforesaid Act or not? The own admission of the vendor and other plaintiff witnesses goes to show that they have admitted that there was no building in existence over the disputed land. 9. Learned counsel for the appellants placed reliance on a decision of this Court in the case of Amrit Ram and others v. Gauri Shanker Singh, 1983 ALJ 509. The facts of the instant case appears to be similar to that of the aforesaid decision. 9. Learned counsel for the appellants placed reliance on a decision of this Court in the case of Amrit Ram and others v. Gauri Shanker Singh, 1983 ALJ 509. The facts of the instant case appears to be similar to that of the aforesaid decision. In the decision cited above, the question involved before the Court was whether the party claiming presence of KHANDHAR was entitled and was sufficient and he could acquire title to the land and avail benefit of Section 9 of the Act. The Court held that the remnants do not suffice to cover the definition of a “building” within the meaning of Section 9 of the U.P.Z.A. & L.R. Act and hence no title could be acquired by person by virtue of the said provision. In the instant case, the admission on the part of the plaintiffs that there was no construction and the sale deed is in respect of a land described at the foot of the plaint. The boundaries are given and it is mentioned that the land in question is bounded on one side by the house of Bankateshwar Dutt Dubey only to give exact location and not part of the land in question. Consequently this house or building cannot be taken into consideration while granting benefit to the plaintiffs under Section 9 of the Act. On a close perusal of the oral as well as documentary evidence, I am of the considered opinion that both the Courts below have grossly erred in law while granting benefit to the plaintiffs and hold that the disputed land stood settled with the erstwhile owner under Section 9 of the Act and consequently, Bankateshwar Dutt Dubey had no rightful claim to the property which was transferred to the plaintiffs by means of the aforesaid sale deed. Section 9 of the Act is specifically for the word ‘Imarat’ and this has been interpreted in the case of Bechanram Singh v. Rajaram, 1967 RD 297. In the said case, there was a Chhaoni in a dilapidated condition and it was held that even on the villages Kachcha houses are constructed after they fall down in rainy season, it cannot be said that as long as the owner of this house has an intention to rebuild the house, that house does not exist and the land is merely an abadi site or vacant land. In the case of Gram Sabha Mauza Buhalwa v. Gauri Shanker Prasad, 1971 RD 124, the controversy involved was regarding structure standing on the disputed plot and it was held that in the context of structure, ‘building’ contemplated in Section 9 of the Act would be a kind of structure which could be used for his benefit by the owner somewhat permanently that is, before the day of vesting. The user might be for a residential purpose such as tethering of cattle or carrying on some cottage industry or any other purpose but a covered structure which is habitable. It is thus clear that the pleadings or any evidence on behalf of the plaintiffs do not meet this requirement. The central theme behind the connotation of the expression ‘building’ would, therefore, seem to be the existence of a structure or construction used or capable of being used for residential purposes or for storage or even use for non-residential but it should necessarily be a roofed structure for habitation, shelter, storage, trade, manufacture, religion, business, education and the like. 10. Nothing has been shown to exist in the present case. The trial Court did not even bother to frame any issue and record its finding in respect of Section 9 of the U.P.Z.A. & L.R. Act. Since the instant second appeal has been admitted only on this solitary question of law, I have no option but to examine the record and two judgments in respect of question of law raised in the instant appeal. The Courts below have proceeded to decree the plaintiffs’ suit on the basis of title alone placing reliance on the sale deed and statement of the vendor Bankateshwar Dutt Dubey. On a bare perusal of the plaint, it is apparent that the suit is founded on the question of title and, therefore, the trial Court framed issue only regarding the title and possession but before arriving at a conclusion, it was incumbent on the Courts below to record a conclusion whether the land in question stood settled in favour of erstwhile owner and he had a right to execute the sale deed in favour of the plaintiffs. 11. I cannot loose sight of the fact that the suit was instituted by the plaintiffs and defendant-appellants was the one who had set up the claim in the written statement. 11. I cannot loose sight of the fact that the suit was instituted by the plaintiffs and defendant-appellants was the one who had set up the claim in the written statement. It was the bounded duty of the plaintiffs to establish its case by means of cogent evidence based on pleadings. A heavy burden lay upon the plaintiffs to establish that he acquired a valid title under the said purchase and the vendor had a right to execute the sale deed and transfer the disputed land. The plaintiffs can succeed on the strength of their own strength alone and not on the basis of shortcomings of the defendants. In the circumstances, I hold that the judgments of both the Courts have recorded their findings on the shortcomings of the defendants and the plaintiffs have failed to establish their claim on the basis of evidence and, therefore, the judgments suffer from substantial error of law raised in this appeal. These questions remain unanswered by the Courts below. It is a substantial error of law and the judgments do not stand the legal test and not sustainable in law. 12. In the facts and circumstances, I am in full agreement with the argument of the counsel for the appellants. Both the courts below have overlooked this material aspect which was primarily to be established by the plaintiffs but they miserably failed to do so. The judgment and decree dated 16.4.1982 passed by the District Judge, Mirzapur and judgment and decree dated 27.8.1980 passed by the 1st Additional Munsif, Mirzapur are set aside. The plaintiffs’ suit stands dismissed. The appeal is allowed. Cost on parties. ————