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2017 DIGILAW 1273 (ALL)

SADA NAND v. BAL CHAND

2017-05-12

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—After the plaintiff’s suit was decreed and the defendant’s first appeal was allowed, the instant Second Appeal has been filed by the plaintiffs against the judgement and decree dated 12.4.1978 by which the plaintiff’s suit was dismissed. 2. The plaintiffs had come up with a case that they were in possession over the land in dispute and that they required it as their land appurtenant and sehan. When the defendants interfered with their possession, they filed the suit for a relief of permanent injunction against the defendants. Subsequently, the petitioners amended their plaint and tried to get the advantage of the provisions of Section 122 B (4F) of The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as ‘the Act’). Still further, by an amendment, they added a prayer that they be put back in possession if found out of it. The trial Court while decreeing the suit primarily found that the plaintiffs-appellants were owners in possession over the plot in question. It gave the plaintiffs the benefit of Section 122 B (4F) of the Act and concluded that once when the plaintiffs were owners in possession, the disputed plot as has been claimed by the defendants could not have been allotted to the defendants by the Gaon Sabha by way of allotments dated 9.12.1975. The First Appellate Court reversed the finding of possession and ownership as had been arrived at by the trial Court and concluded that the plaintiffs were not the owners in possession over the plot in question. The Appellate Court also found that the plaintiffs were already having their sehan which was appurtenant to their houses. Thus, after reversing the findings of fact and after reassessment of the evidence available, the First Appellate Court reversed the findings of ownership and possession, allowed the appeal and dismissed the suit. 3. The plaintiffs/appellants submitted that the First Appellate Court reversed the findings as had been arrived at by the trial Court in a very perfunctory manner and did not apply its mind while doing so. The reliance placed by the trial Court on exhibit No. 2 was proper and that the plaintiffs not only had acquired an indefeasible right over the property in question but were also entitled to the benefit of Section 122B (4F) of the U.P Zamindari Abolition and Land Reforms Act, 1950. 4. The reliance placed by the trial Court on exhibit No. 2 was proper and that the plaintiffs not only had acquired an indefeasible right over the property in question but were also entitled to the benefit of Section 122B (4F) of the U.P Zamindari Abolition and Land Reforms Act, 1950. 4. The respondents-defendants, however, argued that exhibit No. 2 was nothing else but a report submitted by the Naib-tehsildaar on an application which the plaintiffs had submitted for getting some more land for developing their abadi and by that report no ownership had, in fact, been recognized of the plaintiffs. 5. After having heard the parties and after having gone through the record, I find that the First Appellate Court gave a correct conclusion regarding the plaintiff’s possession and ownership. After dealing with all the relevant evidence before it - oral as also documentary - the First Appellate Court found that the plaintiffs had, apart from the Plot No. 492, sufficient land which could be called land appurtenant and could be used as their sehan. The instant plot during consolidation was an agricultural land of the Gaon Sabha and had been earmarked as harijan abadi to be allotted in the future. Once when the plaintiffs had come up with the case that the land in question was a part of their abadi and had to be vested with them as land appurtenant, they could not have taken a contradictory stand that the land in question was an agricultural land belonging to the Gaon Sabha over which the plaintiffs had been in unauthorized occupation and had resultantly on 30.6.1975 under Section 122 B (4F) of the Act, becomes Sirdars. 6. The First Appellate Court rightly held that exhibit No. 2 purports to be only a report of some revenue authority which was given on some application of the plaintiffs and the same showed that the plaintiffs had applied to the Collector for expansion of their abadi and the permission was refused. Thus, the conclusion of the First Appellate Court that the trial Court wrongly relied upon exhibit No. 2 is absolutely correct. The judgment and decree impugned cannot be interfered with. 7. The Second Appeal is concluded by findings of fact and it is, accordingly, dismissed.