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2016 DIGILAW 2608 (ALL)

Zilajeet v. Bala Prasad

2016-07-28

RITU RAJ AWASTHI

body2016
JUDGMENT Raj Awasthi, J. – Heard learned counsel for the parties and perused the records. 2. The instant second appeal has been filed by the appellants-defendants challenging the judgment and order dated 28.4.2012, passed by the First Appellate Court in Civil Appeal No.6 of 2005 as well as judgment and decree dated 12.1.2005, passed by Trial Court in Civil Suit No. 1083 of 1988. 3. Learned counsel for the appellants submits that the respondent has filed suit for permanent injunction which was decreed by the learned Trial Court without getting the land in disputed surveyed, since the appellants-defendants has claim their right over the land in disputed on the basis of Section 9 of U.P.Z.A. & L.R. Act, it was necessary to issue survey commission. It is also submitted that the learned Trial Court as well as First Appellate Court have failed to appreciate that the appurtenant land to the house of defendant was liable to be given to the defendant in view of Section 9 of Z.A.& L.R. Act. The question as to what is the appurtenant land has not been considered by the learned trial court as well as first appellate court. 4. Learned counsel for the respondent, on the other hand, submits that the land in disputed was settled in favour of respondent-plaintiff on the basis of permission (izazatnama) which was given in favour of Mr. Bala Prasad (deceased plaintiff) by the then Zamindar Rajeshwar Singh on 7.1.1950. Copy of izazatnama was placed on record as evidence No.6 G2/2. It is the case of the respondent-plaintiff that after the said izazatnama the possession over the land in disputed was handed over to Mr. Bala Prasad and after coming into force of U.P.Z.A. & L.R. Act, 1952 the land in disputed was settled in favour of the plaintiff on the basis of Section 9 of U.P.Z.A. & L.R. Act. It is submitted that the appellants-defendants were never in possession of the land in disputed prior to coming into force of U.P.Z.A. & L.R. Act and, as such, are not entitled to get the benefit of Section 9 of U.P.Z.A. & L.R. Act. 5. I have considered the submissions made by parties' counsel and gone through the records. 6. Learned Trial Court while deciding the suit filed by the respondent-plaintiff has framed certain issued which on reproduction reads as under: - __Hindi__ 7. 5. I have considered the submissions made by parties' counsel and gone through the records. 6. Learned Trial Court while deciding the suit filed by the respondent-plaintiff has framed certain issued which on reproduction reads as under: - __Hindi__ 7. Learned Trial Court while deciding issue no.1 has come to conclusion that the land in disputed is an abadi land which was given to plaintiff by a written permission (izazatnama) and he has been in possession of the same prior to coming into force of Z.A. & L.R. Act. In view of Section 9 of U.P.Z.A. & L.R. Act the said land stand settled in favour of respondent-plaintiff. Learned Trial Court has also come to conclusion that after filing of the suit the appellants-defendants have forcefully opened a door in the wall lying on the south and have put a temporary structure (chhappar) in the land in disputed. The learned Trial Court has decided Issue No.1 in favour of the plaintiff by holding that the plaintiff is owner and in possession of the land in disputed. 8. The learned Appellate Court while deciding the appeal preferred by the present appellants has considered in detail the contentions raised by the appellants and has upheld the findings record by the learned Trial Court. It has been observed by First Appellate Court that the appellants-defendants have not produced any evidence to show that any part of land in disputed was handed over to them by the then Zamindar and they have any right over the land in disputed. The First Appellate Court has upheld the findings of the learned Trial Court that the appellants-defendants have forcefully opened a door on the south wall and have put up temporary structure (Chhappar). Learned Trial Court as well as learned First Appellate Court have relied on the Commissioner's report in this regard. 9. In view of above, it appears that the land in disputed was settled in favour of plaintiff-respondent on the basis of Section 9 of Z.A. & L.R. Act as the said land was given to the defendants-plaintiffs by the then Zamindar vide written permission dated 7.1.1950 i.e. prior to coming into force of U.P.Z.A. & L.R. Act. The appellants-defendants has not proved their right or title over the land in disputed. The appellants-defendants has not proved their right or title over the land in disputed. In view of the findings record by the learned Trial Court and upheld by the learned First Appellate Court the appellants were not entitled to get benefit of Section 9 of U.P.Z.A. & L.R. Act. 10. I do not find it a fit case where it was necessary for the learned Trial Court to have got a survey commission issued prior to deciding the issues in the suit. The learned Trial Court on the basis of evidence on record and the Advocate Commissioner's report was justified in deciding the issues framed in the suit and giving its conclusions. 11. In view of above, I do not find any infirmity or illegality in the findings record by the learned Courts below. There are concurrent findings of the Courts below which do not require any interference. The second appeal being devoid of any substantial question of law is dismissed at the admission stage. Appeal Dismissed.