JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri R.C.Singh, learned counsel for the petitioner. None appeared for the respondents though the names of Sri V.B. Khare, Sri V.D. Ojha, Sri Yasharth, Sri R.U. Ansari and Sri V.K. Khare have been shown in the cause list as counsel for the respondent. Sri Ansari, one of the several counsels for the respondent has sought adjournment on the ground of illness, which I declined to accept since it is an old matter pertaining to year 1977 and there are several other counsel to represent respondent. I accordingly proceed to hear this appeal ex parte. 2. Following four substantial questions of law were formulated by this Court: “(i) Whether the admission made in the agreement dated 19.7.1946 by the Sukhinath (original defendant) was binding on Smt. Ram Rati widow of Sukhinath and admission marked as exhibit -2 not having been explained or rebutted, it was not only binding but conclusive and decisive of the matter? (ii) Whether agreement Ex.-2 proved that the land in question was grave-yard and it was not legally open to Smt. Ram Rati defendant to go against the admission in that document when she claimed right in the land through Sukhinath defendant who executed the agreement? (iii) Whether the land in dispute being Kabristan and so recorded in municipal record, it will remain Kabristan and it being also waqf property, its nature cannot be changed? (iv) Whether the permissive possession of a licencee could turn into adverse possession particularly in view of the proved agreement dt 19.8.1946?” 3. The brief facts, which would be helpful to answer the aforesaid questions, as born out from record, are as under: 4. The plaintiff-appellant Mohd. Mahmoodul Haq instituted original suit No. 1258 of 1971 against defendant Sukhinath in respect to property in dispute, referred to as Qabristan, with boundary, situate at Mohalla Shah Maroof, City Gorakhpur. 5. The plaintiff’s case is that Qabristan is ancestral and plaintiff is Zamindar and Mutawalli thereof. The Qabristan bounded by walls on south-east and north. There also existed very old trees. On the south east corner of Qabristan, there is a house which belong to plaintiff. The defendant Sukhinath was permitted to reside in the house on the condition that he shall look after graves and grow vegetables on vacant land and whenever required, shall vacate the premises. There also existed very old trees. On the south east corner of Qabristan, there is a house which belong to plaintiff. The defendant Sukhinath was permitted to reside in the house on the condition that he shall look after graves and grow vegetables on vacant land and whenever required, shall vacate the premises. The defendant, however, acted against terms and conditions on which he was licensed to reside, hence, the suit for possession and damage. 6. The original defendant Sukhinath died during pendency of the suit and Smt. Ram Rati and Smt. Chilhia, both claimed to be widows of Sukhinath, were substituted as defendants 1/1 and 1/3 respectively. The defendant No. 1/3 did not file any written statement but defendant No. 1/1 contested the suit filing her written statement. She disputed the claim set up by plaintiff and said that land in suit is not Qabristan. There are only two graves and it was not qualified to be a Qabristan. The trees are owned by Sukhinath and house was also built by him. The land was his ancestral tenancy and he was not a licensee, as alleged by the plaintiff. Consequently, she claimed that defendants are entitled to continue in possession in their own rights. 7. The suit was decreed for relief No. 1, 1(A) and 4 with costs vide Trial Court’s judgment and decree dated 3.7.1976. There-against Civil Appeal No. 239 of 1976 was filed by defendants 1/1 and 1/3. The lower Appellate Court i.e. Additional District Judge, Court No. 3, Gorakhpur, vide judgment and decree dated 5.5.1977, allowed the appeal, and, Trial Court’s judgment has been modified to the extent that plaintiff’s suit is decreed only for possession over the house in suit and piece of land lying to the west thereof. The judgment and decree of Trial Court as regards its Sahan and remaining land is maintained. But with regard to damage, the judgment of Trial Court has been reversed. The lower appellate Court has held that defendants are licensee of house, but not to the land, which was under his/their cultivation and that is how granting relief of possession with respect to the house, it held that in respect to the land under cultivation, such a relief cannot be granted. 8. The lower appellate Court has held that defendants are licensee of house, but not to the land, which was under his/their cultivation and that is how granting relief of possession with respect to the house, it held that in respect to the land under cultivation, such a relief cannot be granted. 8. From a bare reading of judgment, I find that Trial Court had formulated 16 issues and recorded findings thereon but lower Appellate Court neither formulated its own issues nor while reversing findings of Trial Court has considered findings recorded by Trial Court and without reversing those findings, judgment of reversal has been passed. Apparently, from the reading of the judgment of lower Appellate Court, complete non compliance of Order XLI, Rule 31, C.P.C. on the part of the lower Appellant Court is apparent and evident. 9. One of the issues before Trial Court is, whether land in suit is private graveyard or bhumidhari of defendant Sukhinath. Similarly, issue No. 2 and 3 are, whether defendant was appointed to maintain and look after the land in suit and house on behalf of plaintiff; and, whether defendant was allowed to cultivate the land i.e. in lieu of service if so, its effect. The connected issue No. 10 is whether land in suit is the ancestral tenancy of Sukhinath. The aforesaid four issues namely 1, 2, 3 and 10 were considered together and decided in favour of plaintiff and against defendant by the Trial Court. 10. The lower Appellant Court has upheld existence of graves so as to hold disputed area as ‘Qabristan’ but without any demarcation. It has observed that, land under cultivation is shown separately in the site plan from the graveyard and the said land under cultivation being in possession of defendant, plaintiff cannot succeed to claim possession over that area, which was all along under cultivation by defendant. In order to hold rights of defendants as hereditary tenants, matured to bhumidhari rights, he has referred to copies of Khataunis and bhumidhari certificate Exhibit A-4. In respect to these documents Trial Court has considered and found that these entries were not made in accordance with U.P.Land Revenue Act and U.P. Land Record Manual. There was no sanction of the competent authority to make such entries and that is how, even Sanad bhumidhari document also would not confer any right upon the defendant. In respect to these documents Trial Court has considered and found that these entries were not made in accordance with U.P.Land Revenue Act and U.P. Land Record Manual. There was no sanction of the competent authority to make such entries and that is how, even Sanad bhumidhari document also would not confer any right upon the defendant. To record this finding, Trial Court relied on Subhana and another v. Deputy Director of Consolidation and others, 1973 ALJ 375, and some other authorities but lower Appellate Court has not at all referred to and discussed these findings but has simply referred to documents and thereafter accepted status of defendant in respect to part of land, which according to it was a land under cultivation by defendant. Unless the reasoning of Trial Court is considered in respect to each issue, an order of reversal would not be valid. 11. At this stage it may be considered as to what constitute ‘land’ under United Provinces Tenancy Act, 1938 (hereinafter referred to as “Act, 1939”). The term ‘land’ has been defined in Section 3(10) of Act, 1939 and reads as under: “land” means land which is let or held for growing of crops, or as grove land or for pasturage. It includes land covered by water use for the purpose of growing singhara or other produce, but does not include land for the time being occupied by buildings or appurtenant thereto other than building which are improvements.” 12. The term “land” has also been defined in Section 3(14) of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as “Act, 1950”) and reads as under: “Land except in Sections 109, 143 and 144 and Chapter VIII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.” 13. Section 16 of Act, 1939 talks of hereditary rights in Sir and demarcation of sir, which reads as under: “Hereditary rights in sir and demarcation of sir which is let.—(1) Every person, who at the commencement of this Act, is a tenant of sir holding from a sir-holder to whom the provision of the first proviso to Cl. Section 16 of Act, 1939 talks of hereditary rights in Sir and demarcation of sir, which reads as under: “Hereditary rights in sir and demarcation of sir which is let.—(1) Every person, who at the commencement of this Act, is a tenant of sir holding from a sir-holder to whom the provision of the first proviso to Cl. (a) of Sec. 6 apply shall, at such commencement, become a hereditary tenant of his holding if at such commencement such sir-holder possess fifty acres or more than fifty acres of sir which is not let, and which did not cease to be sir under any of the previous provisions of this Act. (2) If at such commencement such sir-holder possesses less than fifty acres of such sir, such person shall become a hereditary tenant only in accordance with a declaration to that effect made under the provisions of sub-section (3). (3) In a case to which the provisions of sub-section (2) apply the Assistant Collector may of his own motion, and shall, on the application either of sir-holder or the tenant, demarcate the sir of the sir-holder and shall declare that any tenant of land situated in the area not so demarcated shall be in a hereditary tenant of his holding or of such person thereof as is situated in such area. (4) In demarcating sir under the provisions of sub-section (3), the assistant Collector shall demarcate as sir so much of the sir-holder’s sir and of his khudkasht as amounts to fifty acres, or the area of the sir-holder’s whichever is less: Provided that only so much of the sir as is necessary to made the total area demarcated as sir equal to fifty acres or the sir-holder’s sir whichever is less. (5) If, in accordance with the provisions of sub-section (3), the assistant Collector orders that a tenant be hereditary tenant of a part only of his holding, he shall divide off such portion and shall determine the rent of such portion and of the remainder. (5) If, in accordance with the provisions of sub-section (3), the assistant Collector orders that a tenant be hereditary tenant of a party only of his holding, he shall divide off such portion and shall determine the rent of such portion and of the remainder. (5) If, in accordance with the provisions of sub-section (3), the assistant Collector orders that a tenant be hereditary tenant of a party only of his holding, he shall divide off such portion and shall determine the rent of such portion and of the remainder. (6) Before passing order under sub-section (3), the assistant Collector may make such inquiry as he considers necessary and shall give the sir-holder and the tenants of sir an opportunity to show-cause why the demarcation should be made in a particular way. (7) For the purpose of this section, an acre situated in Bundelkhand or in the trans Jamuna portion of the Allahabad, Etawah, Agra and the Mathura Districts and in such other areas as the State Government may specify by notification in the official Gazette shall be deemed to be half an acre.” 14. It, thus, cannot be doubted that a hereditary tenant could be only if he satisfy requirement of Section 16 of Act, 1939 and that too of Sir land only. If condition set out in Section 16 of Act, 1939 were not satisfied that would not confer any right. Neither defendants could show that their predecessors were tenants or hereditary tenants nor could place anything in evidence to show that defendants succeed tenancy rights in respect to land in question under Act, 1939 and therefore, status of defendant Sukhinath could have been at the best of a licensee and not otherwise. The lower appellate Court having not addressed itself to the various statutory provisions dealing with this aspect has committed a patent illegality. 15. In the present case, land in question formed part of municipal area and therefore, provisions of U.P. Urban Areas Zamindari Abolition Act, 1956 became applicable after its enforcement. Under Section 17 thereof, defendant could have acquired bhumidhari rights if he/she would have been hereditary tenant. No evidence was adduced by defendant to show that area was demarcated as agricultural and in absence of such evidence, no right could have accrued to the defendant. 16. It is also admitted that in municipal record, disputed land was shown as ‘Qabristan’. There was no demarcation or exclusion in respect to land in dispute. Besides, agreement i.e. Exhibit 2 between original defendant and plaintiff having been proved, it construed as an ‘admission’ of defendant, and, his successor i.e. defendants 1/1 and 1/3, could not have taken a stand, otherwise. 17. There was no demarcation or exclusion in respect to land in dispute. Besides, agreement i.e. Exhibit 2 between original defendant and plaintiff having been proved, it construed as an ‘admission’ of defendant, and, his successor i.e. defendants 1/1 and 1/3, could not have taken a stand, otherwise. 17. It cannot be doubted that land, if constitute Qabristan, it always remain to be a Qabristan and mere fact that some part of it is subsequently cultivated by some person, its nature would not have changed. Further question of adverse possession would not arise when initial possession is permissive unless it is shown, at a particular point of time there was an open, hostile possession against real owner with intention to hold adverse. All these facts I do not find to have either be pleaded in written statement of defendant No. 1/1, or discussed in the impugned judgment. 18. I, therefore, answer questions, formulated above, in favour of appellant. 19. The appeal is thus allowed. The judgment of lower appellate Court dated 5.5.1977 is hereby set aside. The matter is remanded to the lower Appellate Court to decide the Civil Appeal No. 239 of 1976 in the light of above observations and in accordance with law expeditiously. ——————