JUDGMENT Hon’ble Anant Kumar, J.—This second appeal has been filed against the judgment and decree dated 4.11.1992 passed in Civil Appeal No. 79 of 1992, Ram Singar v. Bhuneswar and another passed by 4th Additional District Judge, Deoria confirming the judgment and decree dated 29.5.1992 passed by 5th Additional Munsif, Deoria in original suit No. 11 of 1985, Bhuneswer Prasad Tripathi v. Ram Singar and another. The learned trial Court had decreed the suit of the plaintiffs and the appeal filed by the defendant against the said appeal has been dismissed by the lower appellate Court. Hence, the defendant-appellant is before this Court in this second appeal. 2. The brief facts relevant for disposal of the appeal are that the original plaintiff Ram Adhin had filed a suit for mandatory injunction with the facts that the village of the plaintiff was divided in the year 1896 by the Government and separate numbers to the houses and sahan etc. were allotted. The disputed Deeh No. 658 having Nos. 147, 148 and 154 is in the possession of the plaintiff since before the abolition of the Zamindari. Initially Sikmi No. 147 was recorded originally in the name of one Budhiya wife of Ramdhan Upadhyay. She died in the year 1924 issue less long before the Zamindari abolition. After her death, the said property came in possession of the then Zamindar Balbhadra Tiwari. Since the plaintiff was having his house and sahan in the eastern side of the disputed land with the permission of the Zamindar, the plaintiff came in possession of the said land, which was later on confirmed by the Zamindar Balbhadra Tiwari through a Dastwardari dated 7.4.1956 in favour of plaintiff after taking nazrana. In the southern and western side of the disputed land No. 147, disputed Sikmi Nos. 154 and 148 are there, which are used as rasta by the plaintiffs and other co-villagers openly since last 100 years and through this rasta, the vehicles etc. of plaintiff and other persons are going and coming without any restriction up to the door of the plaintiff. It is further pleaded that the defendants are having no concern with Sikmi Nos. 147, 154 and 148 and they have never been in the use of said land but since they are powerful persons, about two days before filing of the suit, they have got encroached a portion of Sikmi Nos. It is further pleaded that the defendants are having no concern with Sikmi Nos. 147, 154 and 148 and they have never been in the use of said land but since they are powerful persons, about two days before filing of the suit, they have got encroached a portion of Sikmi Nos. 147 and 148, which is rasta and have constructed a palani therein, which is shown with the letters Ya, Ra, La, Wa in the site plan attached with the plaint and in Sikmi No. 147 in the western side, they have put a Nand. Due to this disputed construction, there has been hindrance in the free ingress and egress from the said rasta and due to the said construction in the said sahan No. 147, the plaintiff is suffering huge loss whereas the plaintiffs have got no right to make any construction in the said disputed land. The plaintiff had requested again and again to remove the construction but they are not doing so. Hence, the suit was filed for mandatory injunction as well as for prohibitory injunction regarding the said plot Nos. 147, 148 and 154 and alongwith the plaint, a map of the disputed plot was annexed. In the written statement filed by the defendants only this much was admitted that in Sikmi No. 147, house of Budhiya was situated, who had died issue less. After her death, her house had demolished and the then Zamindar had obtained possession of the same. Further, it was pleaded that after the death of Budhiya, the defendants had come in possession of the said land Sikmi No. 147 with the permission of the then Zamindar and they had established their Nand etc. in the same and they are continuing in possession. It was further stated that in Sikmi Nos. 148 and 154, there has never been a rasta and it was never used for ingress and egress by the co-villagers rather, it was stated that in the southern side of Sikmi No. 147, there is an old pakka well situated in Sikmi No. 171 and the water of the said well is flowing through the Sikmi No. 147. It was also pleaded that on the date of enforcement of the Zamindari Abolition and Land Reforms Act, defendants were in possession over the said land. It was also pleaded that on the date of enforcement of the Zamindari Abolition and Land Reforms Act, defendants were in possession over the said land. The said land has vested under Section 9 of the Zamindari Abolition and Land Reforms Act with the defendants. It was also pleaded that since last more than 12 years, the defendants are in possession of the land in suit openly in the knowledge of the plaintiffs. They have pleaded their adverse possession over the Sikmi numbers in dispute. 3. On the basis of the pleadings of the parties, learned trial Court had framed issues regarding the ownership and possession of the land and regarding the construction raised on the said land on the basis of the oral and documentary evidence produced by the parties. The plaintiffs have filed paper No. 10 Ka which is the said Dastwardari dated 7.4.1956 After assessing the evidence on record while deciding the issue Nos. 1 and 2 jointly, the learned trial Court came to the conclusion that plaintiffs are in possession of the said land on the basis of the permission of the Zamindar, which is proved by paper No. 10 Ka. The trial Court also came to the conclusion that it is an admitted case between the parties that Smt. Budhiya was in possession of the Sikmi No. 147 and after her death, the property came in possession of the Zamindar and since plaintiffs had succeeded to prove that with the permission of the Zamindar, they came into possession over the said property regarding which, the document was also executed by the Zamindar paper No. 10 Ka. So the plaintiff’s possession over the land in dispute was proved and they are the owners of the said land. Accordingly, the construction raised by the defendants on the said land was held to be illegal and suit of the plaintiffs was decreed. 4. Aggrieved with the said decree, the defendants filed First Appeal No. 79 of 1992. After hearing the parties, the learned first appellate Court also endorsed the findings of the trial Court and held that after the death of Budhiya, the Zamindar Balbhadra Tiwari had given the possession of the land to the plaintiffs, which has been proved before the trial Court and the defendant is having his house away from the disputed land and the construction raised by him is not at all legal. Accordingly, the appeal of the defendant-appellant was dismissed and the judgment and decree of the trial Court was upheld. 5. In this appeal, following substantial questions of law has been framed by this Court on 16.8.2005; “(1) Whether erstwhile Zamindar Balbhadra Tiwari had no authority in law to enter into a settlement and issue document ‘Dastwardari’ with any third person and handover the possession of the land in question to any person as all the Zamindari land had vested in the State with effect from the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1951? (2) Whether any right, title or interest had accrued in the person in whose favour the Zamindar had issued the ‘Dastwardari’ and made the settlement in his favour under law?” 6. I have heard learned counsel for the appellant and Sri Sateyndra Nath Srivastava, learned counsel for the respondents and perused the record. So for as the first substantial question of law is concerned, it is to be seen as to whether the erstwhile Zamindar Balbhadra Tiwari had any authority in law to enter into a settlement and issue a document Dastwardari with any third person and hand over the possession of the land in question to any person as all the lands of the Zamindar had vested in the State with effect from the date of enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1951. In this regard, the learned counsel for the appellant has vehemently argued that from the perusal of the paper No. 10, which is said to be the Dastwardari executed by the Zamindar in favour of the plaintiff is dated 7.4.1956 by that time, the Zamindari Abolition and Land Reforms Act 1951 had came into force and all the lands of the Zamindar had vested in the State so the Zamindar had no right to execute any such Dastwardari and if at all such Dastwardari has been executed, no right, title or interest can be transferred through the said deed and plaintiff cannot claim any title under the said document. 7. 7. In this regard, the learned counsel for the appellant has placed reliance of a case law L.I.C. of India and another v. Ram Pal Singh Bisen wherein, 2010 Legal Eagle (SC) 181, the Hon’ble Apex Court has held that; “No doubt, it is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, which the appellants have miserably failed to do.” The Hon’ble Apex Court has further held that; “We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.” So far as the compliance of Order 12 CPC is concerned, the Hon’ble Apex Court has held as under; “22. Order XII, Rules 1 and 2 appearing in the Code of Civil Procedure reads as thus: “ORDER XII ADMISSIONS 1. Notice of admission of case.-Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. 2. Notice to admit documents.-Either party may call upon the other party to admit, within seven days from the date of service of the notice any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, what- ever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.” 23. It is also necessary to mention here that Rule 2A of Order XII of the CPC deals with the situation where notice of admission as contemplated in Order XII Rule 2 of the CPC has been served but is not denied then the same shall be deemed to have been admitted. Similarly, Rule 3A of the aforesaid Order grants power to the Court to admit any document in evidence, even if no notice has been served. The aforesaid provisions of law have been brought in the Code vide Amendment by Act No. 104 of 1976, w.e.f. 1.2.1977. 24. Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits. Thus, no advantage thereof could be accrued to the appellants, even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked.” On these grounds, it is stated by learned counsel for the appellant that since the said document 10 Ga filed on behalf of the plaintiff’s was not proved before the trial Court, the plaintiff cannot get any advantage out of that. In this regard, when the matter is examined in the light of the said pronouncement, it is evident from the record that order sheet of the trial Court dated 28.3.1985 shows that in the same, there is a mention that paper No. 10 filed per list 9C not admitted by defendant requires proof. The document 10C having an endorsement of its back shows that the said document was not admitted by the defendant. Accordingly, to my view, so far as the compliance of Order XII Rule 2 CPC is concerned, the same has been done by the trial Court. A perusal of the statement of P.W. 1 also shows that the said document was proved before the trial Court. However, no exhibit was marked on the said document but to my view, if the document was otherwise proved before the trial Court merely because no exhibit was marked on the said document, it cannot be said that the said document was not admissible in evidence. So to my view, the document was correctly read by the learned trial Court in evidence. 8. So to my view, the document was correctly read by the learned trial Court in evidence. 8. Learned counsel for the respondents has argued that in fact through this document, no right, title or interest have been created in favour of the plaintiff-respondents, this is only a memorandum deed and in fact possession of the disputed land was already continuing with the plaintiffs since before the abolition of Zamindari and the said fact is mentioned in this document also wherein it is mentioned that the possession of the plaintiffs is continuing in Sikmi No. 147 since last 14 years. So it is not a document through which any right, title or interest has been transferred, rather the possession of the plaintiffs was continuing in the land in dispute after the death of Budhiya with the permission of the Zamindar and on the date of enforcement of Zamindari Abolition and Land Reforms Act 1951, the plaintiffs were already in possession of the said land and it cannot be said that plaintiffs came into possession of the land in dispute after the execution of this document dated 7.4.1956. In this regard, the learned counsel for the respondents have referred the contents of the plaint wherein in paragraph 3, it is stated that Budhiya had died in 1924 and since then the land in dispute came in possession of the Zamindar. In paragraph 4 of the plaint, it is further pleaded that since the plaintiffs were having their house and sahan in the eastern side of the disputed land, the plaintiffs with the permission of the then Zaminar came into possession over the said land, which was confirmed by the Zamindar through the deed dated 7.4.1956. So from this pleading, it is evident that in fact the plaintiffs were continuing in possession over the land in dispute since long before 7.4.1956 and the same thing is mentioned in this deed wherein, it is mentioned that since last 14 years, the plaintiffs are continuing in possession of the land in dispute. It means the plaintiffs were in possession of the land in dispute since 1942. 9. In my view, there is a force in the contention of the learned counsel for the respondents. It means the plaintiffs were in possession of the land in dispute since 1942. 9. In my view, there is a force in the contention of the learned counsel for the respondents. In the plaint also, it is not the case of the plaintiffs that they came in possession over the said land on 7.4.1956 after the execution of the said Dastwardari deed and in fact, they were continuing in possession over the land dispute since before the said date and just to keep it on record, the document was executed by the then Zamindar. So, to my view, the document 10 ka is not a Dastwardari deed, in fact, it is a simply memorandum. So the question No. 1 is answered in this way that since the plaintiffs were continuing in possession of the land in dispute since before the abolition of the Zamindari and as a memorandum, this Dastwardari was executed by the then Zamindar Balbhadra Tiwari. They had got every right to execute the said document just to keep it on the record that the plaintiffs are continuing in possession of the disputed land since last 14 years. 10. So far as the second question of law is concerned, it is to be seen as to whether any right, title or interest had accrued in the person in whose the Zamindar had issued the Dastwardari and had made the settlement in his favour under law, as while deciding the substantial question of law No. 1, I have expressed my view that the said document is not a document through which any right, title or interest has flown in favour of the plaintiffs. In fact the possession of the plaintiffs had come in existence long before the execution of the said Dastwardari deed with the permission of the Zamindar as is alleged in the plaint and proved by the evidence and this Dastwardari document was executed as a memorandum with the earlier permission granted by the Zamindar through which the plaintiffs came into possession of the land 14 years before the execution of the Dastwardari. So, in fact, from the said Dastwardari, no right, title or interest has flown in favour of the plaintiffs because the plaintiffs were continuing in possession of the said land since before the execution of the said Dastwardari, so this memorandum of Dastwardari is just to keep on record with the earlier permission granted by the Zamindar to occupy the said land. Accordingly, the substantial question of law No. 2 is answered. 11. Since the concurrent findings of fact have been recorded by the trial Court as well as first appellate, which are, in my view, totally on the basis of evidence on record and no such material has been placed before this Court to disturb the said findings and, as such, the findings of the trial Court as well as first appellate Court are liable to be confirmed and this appeal having no force is liable to be dismissed. Accordingly, the appeal having no force, is dismissed. No order is passed as to costs. —————