JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Sri Lalji Sinha, learned counsel for the appellants. Sri Sharad Malviya, learned counsel, has appeared for the respondents. 2. Through this Second Appeal, preferred under Section 100 of the Code of Civil Procedure, the Appellants, that is, Kanpur Development Authority and Nagar Mahapalika, Kanpur, have assailed the judgment and decree passed by the First Appellate Court, that is, the Ist Additional District Judge, Kanpur City, by which the findings and conclusions as contained in the judgment and decree of the Trial Court dated 22.10.1983 have been affirmed. 3. In this land acquisition matter, both the Courts below, that is, the Trial Court and the First Lower Appellate Court, have recorded concurrent findings that the agricultural plots in dispute were not acquired by the State Government nor the actual and physical possession was ever taken by the concerned Land Acquiring Authorities. The respondent-land owners are having their old Abadi, Residential Houses and constructions over the land in dispute for the last more than sixty years, situate in old Naubasta Village in the vicinity of Kanpur City. 4. It emerges from the record that the land acquisition proceedings were carried out in Village Naubasta and in other Village situate in the vicinity of Kanpur City for which notification under Section 4 of the Land Acquisition Act, 1894 was issued on 23.2.1961 and thereafter other steps were taken in furtherance of the said notification for acquiring the land. Ultimately, an award was rendered in the year 1983. When the concerned Revenue and Land Acquiring Authorities came to the respondent-land owners and threatened the land owners that the possession of the land in dispute would be immediately taken and the constructions existing on the land would be demolished, the respondent-land owners, under these compelling circumstances, had to file Civil Suit No. 407 of 1983, Khuman and others v. Kanpur Development Authority and others, in the Court of XII Additional Munsif, Kanpur seeking a permanent injunction. It was pleaded in the plaint that the plaintiffs (respondents herein) were having their old Abadi, ancestral houses and constructions etc. over the land in dispute, situate in old Village Naubasta. This Village was not within the Municipal Limits and the property was, in fact, a Village Abadi. It was pleaded in the plaint that the plaintiffs (respondents herein) were having their old Abadi, ancestral houses and constructions etc. over the land in dispute, situate in old Village Naubasta. This Village was not within the Municipal Limits and the property was, in fact, a Village Abadi. Since the plaintiffs were already having residential houses in the old Abadi as such, the land in dispute could not have been acquired for establishing a housing colony by the Kanpur Development Authority. It was further pleaded that the plots in dispute, upon which constructions were existing, were not mentioned in the notification nor acquisition proceedings were initiated in respect of the said plots. The plots in question were mentioned in the revenue entries of 1389 Fasali Khasra and in the Khatauni of 1366 and 1368 Fasali, where plaintiffs were recorded as Bhumidhars of the land in dispute where plaintiffs and their family members were residing and looking after their agricultural operations. 5. It was specifically pleaded before the Courts below by the plaintiff-respondents that the plaintiffs’ land did not find place in the award, in the list which contained particulars of lands which were acquired or possession in respect of which were to be taken by the State Government. The land in dispute was never vested in the State Government nor was fit for establishing a Housing Colony as it was an old Village Abadi existing in the area. It was not aim and purpose of the State Government to uproot the poor villagers of their residential houses and destroy their property forcibly to construct modern houses for the urban rich or middle class. The details of the property were indicated in the plaint. 6. Oral and documentary evidences were led before the Trial Court that the ancestors of the plaintiffs had constructed houses and raised boundary wall some times in the 1940s and 1950s on old Plot Nos. 11, 15, 19, 20, 25 and 26 in Village Naubasta. Since these constructions were made long time ago at the time when the Village was not within the Municipal Limits, as such, no permission was required to be obtained from the Municipal Authorities of the Kanpur. 7. The appellants had pleaded before the Trial Court and the First Appellate Court that the land in dispute had already been acquired in Cases No. 82/57/58. 7. The appellants had pleaded before the Trial Court and the First Appellate Court that the land in dispute had already been acquired in Cases No. 82/57/58. Award No. 64 was notified on 10.5.1961 and possession of the land was taken over on 23.6.1961 by the Government and the land has been handed over, though on papers, to the Kanpur Development Authority and Nagar Maha Palika, Kanpur. The plaintiff-respondents had no concern with the land in dispute. The boundary wall and other constructions were unauthorised and illegal, which are to be removed. Moreover, the Suit was barred as per the provisions of Land Acquisition Act 1894 and Urban Planning and Development Act, 1973. Similar pleas have been reiterated by the appellants before this Court also while assailing concurrent findings recorded by both the Courts below. While adjudicating upon the issue, the Trial Court has framed following issues covering the dispute : “1. Whether the Suit is under valued & Court fee paid is insufficient? 2. Whether Plaintiffs are Bhumidhars in possession of the disputed land? 3. Whether the land in Suit is acquired land as stated in Para 12 of W.S.? 4. To what relief, if any, is plaintiffs entitled?” 8. The plaintiffs had examined three witnesses, the land owners themselves, Intikhab Khasra and revenue entries to demonstrate that they are Bhumidhars of the land in dispute and were having old Abadi and residential house over the land in dispute. The Development Authority had placed possession letter and award dated 10.5.1961 before the Courts below. 9. After considering the documentary and oral evidence on record, both the Courts below have recorded concurrent findings of fact that the land in dispute owned and possessed by the plaintiff respondents, situate in Village Naubasta, Kanpur was not acquired and that physical possession was never taken from the land owners. The land owners are still having their old Abadi and dwelling houses over the land in dispute for the last several years (now for more than sixty years). Both the Courts below have recorded concurrent findings that land owned by the plaintiffs was not included in the award and possession letter, though the award and possession letter mentions that 243.79 Acres of land was acquired by the State Government in Village Naubasta, Kanpur. Award and possession letter was placed as Paper No. 30-Ga before the Courts below. Both the Courts below have recorded concurrent findings that land owned by the plaintiffs was not included in the award and possession letter, though the award and possession letter mentions that 243.79 Acres of land was acquired by the State Government in Village Naubasta, Kanpur. Award and possession letter was placed as Paper No. 30-Ga before the Courts below. The award itself was silent as to which lands of Village Naubasta were acquired by the State Government. Naksa/plan and details of the agricultural land has not been given. Even in the list annexed with the possession letter dated 23.6.1961, the plaintiff-land owners’ lands do not find mention. The Defendant-appellants have tried to support the point before the Courts below and before this Court regarding actual and physical possession or symbolic possession of the land in dispute by placing certain decisions. 10. Considering the legal and factual position, both the Courts below had held that neither the land dispute was acquired nor actual and physical possession was taken by the Collector. Findings have been recorded on the basis of oral and documentary evidence that there existing old constructions, dwelling houses and old Abadi on the Plot Nos. 11, 15, 19, 20, 22 and 25 are said to be lands owned by the plaintiff-respondents. 11. Findings of fact have been recorded that if the constructions were being illegally raised on the site, some action should have been taken by the Kanpur Development Authority, under the relevant provisions of Uttar Pradesh (Regulation of Building Operations) Act, 1958 or Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972, but neither any action was taken nor any report to that effect was ever made against the plaintiff-respondents in respect of violation of the provisions of aforementioned Rules. The findings have been recorded that the constructions were existing much before to enforcement of Urban Planning and Development Act, 1973, that is, the constructions or old Abadi were existing since 1940s and 1950s. Thus, both the Courts below have recorded findings of fact that the plaintiff-land owners were agriculturists and that the houses, rooms are being used as their residences and for agricultural purposes as well since long, that is, for keeping agricultural equipments and for storage of food grains. Thus, both the Courts below have recorded findings of fact that the plaintiff-land owners were agriculturists and that the houses, rooms are being used as their residences and for agricultural purposes as well since long, that is, for keeping agricultural equipments and for storage of food grains. In view of these facts and circumstances, taking note of oral and documentary evidences, both the Courts below have recorded findings of fact that the land was not acquired nor actual or physical possession was ever taken by the State Government and as such the Trial Court as well as First Appellate Court have decreed the Suit as prayed by the plaintiff-respondents, who are agriculturists. 12. After hearing learned counsel for the parties and carefully perusing the record as well as other materials available on record, it is abundantly clear that the land owned by the plaintiff respondents were their old Abadi land, which was being used for housing and other agricultural purposes for a long time. This Court has also taken note of the fact that if the constructions, existing on the land in dispute, were raised by the ancestors of the plaintiff-respondents some times in 1940s, the plaintiff-respondents must have been dwelling in the houses and rooms for the last sixty years. Therefore, the land in dispute was being used for residential and housing purposes. Thus, in the facts and circumstances of the case, the Courts below have rightly rejected claim put-forth by the Defendant-appellants as it does not seem proper to uproot some of the poor Villagers of the Village by demolishing their old residential accommodation and Abadi to make way for raising residential accommodation for rich class or urban middle class. On the principles of equity also, the old Abadi cannot be removed or acquired for raising a housing Colony, but in the present case it has been done. Both the Courts below have rightly recorded concurrent findings of fact, after appreciating oral and documentary evidence, that the lands in dispute were Abadi lands of the plaintiff-respondents, who were duly recorded in the revenue records, description of which have been given in the foregoing paragraphs. 13. The details of the plots in dispute do not find place in the award nor in the letter of possession. 13. The details of the plots in dispute do not find place in the award nor in the letter of possession. Both the Courts, while adjudicating the dispute, have gone through the award and the list annexed with the letter of possession and found that the appellants have failed to prove before the Courts below as to whether the land owned by the plaintiff-respondents were acquired, if acquired, what were the details of the acquired property and whether actual or physical possession of the same was taken in 1961 or up to 1983 or till filing of the Suit. Thus, it has rightly been held by the Courts below that the lands in dispute have never vested in the State Government since it has not been acquired. The Kanpur Development Authority or the Nagar Maha Palika, Kanpur cannot stake its claim over the lands in dispute, which were not acquired. 14. This Court has taken note that the State Government or the Land Acquiring Authority, that is, the Collector, Kanpur or the Assistant Collector, had never entered into the litigation either before the Trial Court, First Appellate Court or in this Court to prove that the land in dispute was acquired. No appeal has been filed by the State Government or the Land Acquiring Authorities, whose actions were challenged by the plaintiff-respondents/land owners. It is also a very serious lacuna in this Appeal. 15. Both the Courts below have recorded concurrent findings of fact that the lands were not acquired nor possession was ever taken by the State Government. No letter or document was placed before the Courts below by the Defendant-appellants showing that the land was handed over to the Kanpur Development Authority or the Nagar Maha Palik, Kanpur for establishing residential housing colony. Thus, a perusal of the judgments of the Courts below reveals that findings of fact have been recorded on the disputed questions of facts by which the dispute has been set at rest by the Courts below, after appreciating the oral and documentary evidence and taking into consideration other materials available on record. 16. Thus, a perusal of the judgments of the Courts below reveals that findings of fact have been recorded on the disputed questions of facts by which the dispute has been set at rest by the Courts below, after appreciating the oral and documentary evidence and taking into consideration other materials available on record. 16. This Court has also scrutinised the present case in the light of the decisions rendered by the Hon’ble Apex Court as in Bachhaj Nahar P. v. Nilima Mandal and another, AIR 2009 SC 1103 ; Bellachi (Dead) by L.R. v. Pakeeran, AIR 2009 SC 3293 and Bhuri Bai and others v. Ramnarayan and others, 2009 (4) SCC 56 ; Kashmir Singh v Harnam Singh and another, AIR 2008 SC 1749 ; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, AIR 1999 SC 2213 and Kashibai W/O Lachiram and another v. Parwatibai W/o Lachiram and others, (1995) 6 SCC 213 and after carefully going through the judgments of the Hon’ble Apex Court this Court finds that no ingredient as required under Section 100 of the Code of Civil Procedure is available in the present case warranting interference by this Court. 17. In view of the discussions made above, no substantial questions of law arises to be considered in this Second Appeal. Accordingly, the Second Appeal, being devoid of merits, is dismissed. 18. The judgments of the Court below shall be immediately implemented and carried out. ————