JUDGMENT Hon’ble Ajit Kumar, J.—The present second appeal arises out of the judgments and decrees passed by the Courts below in a suit of mandatory injunction and restoration of possession. The instant second appeal was admitted by this Court on 18.1.1977, before coming into force of the amendment Act No. 104 of 1976 amending Section 100 of the Code of Civil Procedure (w.e.f. 1.2.1977) limiting the jurisdiction of the High Court to interfere in the second appeal to only those cases that involved substantial question of law. 2. While interpreting Section 100 as stood prior to the amending Act of 1976 Privy Council in the Case of Sheikh Rahmat Ilahi v. Mohammad Hayat Khan and others, AIR 1943 All PC 208, has held: The failure of the Courts below to investigate and come to a finding upon this basic question of fact constituted in their Lordships’ view, a serious error in law against which the plaintiff was entitled to relief upon a second appeal. The material words of Section 100, Civil P.C., are as follows: An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely: the decision being contrary to law. And in their Lordships’ view those words directly cover the present case. Their Lordships’ had occasion to point out in 46 I.A. 140 that where the Courts below had misconceived the real question of fact they had to try there was an error of law on which a second appeal lay: and their Lordships can see no difference in principle between a failure to appreciate and determine the real question of fact to be tried and a failure to appreciate and determine a question of fact which vitially affects the issue stated in the case. In either case the failure is a failure in the duty imposed by law upon the Court and the question whether there has been such a failure must in their Lordships’ opinion be a question of law. In either case the failure is a failure in the duty imposed by law upon the Court and the question whether there has been such a failure must in their Lordships’ opinion be a question of law. Their Lordships would add that if, as was the duty of the High Court, that Court had clearly specified the grounds upon which they held the second appeal to be competent, not only would their Lordships’ task have been facilitated, but the expense and delay occasioned by the appeal to His majesty in Council might very possibly have been saved. 3. Though there is no difficulty in deciding the appeal under Section 100 Civil P.C. as it stood prior to Amending Act, 1976, the counsels appearing for the parties agreed that Court may form substantial question of law also and hear and decide the same as well. Following two substantial questions of law arise for consideration of this Court: (A) Whether the Court below manifestly erred in interpreting and construing the resolution of Gaon Sabha for allotment proceedings dated 1.2.1969 as of Land Management Committee for allotment of abadi site and hence finding of allotment of abadi site in respect of land in question in favour of the defendants is perverse? (B) Whether the Court below erred in law in holding that land appurtinant to cattle shed will not be Sahen of the plaintiff and whether this finding is also vitiated for misreading of evidence? 4. Heard learned counsels for the parties and perused the original records. 5. The suit for mandatory injunction, permanent prohibitory injunction and restoration of possession instituted by the present plaintiff was decreed by the trail Court vide judgment dated 15.3.1973 whereas in civil appeal filed by the defendants-respondents, the judgment and decree of the trial Court was reversed vide judgment dated 17.11.1976 and the suit of the plaintiff-appellants was dismissed with cost throughout. 6. The plaint case of the plaintiff is that there were two Saars (cattle sheds) which were shown in the plaint map as ABCD and land appurtinant to the same was marked as ADHG and it was used as a Sahen (appurtinant land) from a very long time. 6. The plaint case of the plaintiff is that there were two Saars (cattle sheds) which were shown in the plaint map as ABCD and land appurtinant to the same was marked as ADHG and it was used as a Sahen (appurtinant land) from a very long time. However, the defendants who had never been in possession forcefully removed the Charni (cattle trough) and Khunta (the wooden fit long pillar to tie cattle) situate on the Sahen land and got a wall erected up to the plinth level and they were trying to raise building in the said area and hence, the suit was filed seeking demolition of the wall structure (mandatory injunction), prohibitory injunction and restoration of possession. 7. The defendants filed a written statement contesting the suit and while they denied all the plaint allegations, in the additional pleas raised in the written statement it was stated that on 1.2.1969 Gaon Sabha had executed the lease of abadi site in their favour and since then they are in possession of the land in suit. They further claimed that they had erected wall around eight fit in height and twenty six fit in the length towards south of their land which had been demolished by the plaintiffs. 8. In the form of oral evidence the plaintiff Hardayal made his own depositions as PW-1 and one Vishnu was also brought into the witness box as PW-2. The defendants on the other hand produced village Punchayat Secretary Diyaram who was examined as DW-1 while Mewaram gave his testimony as DW-2 and Ram Nath and Babu Ram were produced as DW-3 and 4 respectively. 9. The defendants filed a resolution of the Gaon Sabha which is marked as Exhibit A-3. The Advocate Commissioner’s report was also called for which is available in record as paper No. 105C. 10. The plaintiff Hardayal in his oral testimony has recorded his statements in which he categorically stated that there were two cattle sheds of his and the land in question appurtinant to the same is Sahen were his Charni and Khuta etc. were fixed. He used to tether cattle in the said Sahen area, the land appurtinant to cattle shed and he further stated that towards the north of the Sahen there was a pond. were fixed. He used to tether cattle in the said Sahen area, the land appurtinant to cattle shed and he further stated that towards the north of the Sahen there was a pond. He further stated that as far as the land in suit was concerned there was no house of Khatkin (a women who died issuless) and there was a cemented wall towards north quite away from Sahen and to the north of the wall there was a house that reached in dilapidated condition and ultimately got ruined, suggestively Khatkin’s house. The village people used to dig earth from here, resultantly it became a shallow pit and mostly it used to be water logged during rainy season, otherwise there was no pond prior to this condition of the land that had arrived due to house of Khatkin getting ruined. He stated that map that had been prepared by the Commissioner, the wall of defendant not shown as they had taken away bricks and further Khunta and Charni etc. also could not be shown as it was all removed by the defendants. During the cross-examination the plaintiff Hardayal fairly stated that his own house was towards the west of the cattle shed and there is passage (Dara) from cattle shed towards North. It was recorded in his testimony, during cross-examination, that in between the house of the Khatkin and that from the southern wall of the Khatkin’s house the distance of the cattle shed of the plaintiff was about 15-16 yards. He further stated that cemented wall erected by the Jograj was about 20-22 yards towards South from his cattle shed. The testimony of plaintiff Hardayal and statement during the cross-examination can be summarised as under : (a) there are two cattle sheds though marked as one; (b) there were Charni (cattle trough) and Khunta (wooden one foot long pillar to tie the cattle) over the disputed land towards north of the cattle shed; (c) a shallow pit in the form of a pond is admitted at a distance of around 16 yards towards North from the cattle shed; (d) there is cemented wall towards North of the cattle shed at about 15 yards distance; and (e) house of Khatkin is admitted to have existed towards North of the cattle shed over and above the land which got converted into a shallow pit like a pond. 11. 11. PW-2 Vishnu supported the entire case of the plaintiff and reiterated possession of the plaintiff from the very beginning of his memory. He states that house of Jograj is about 20-25 yards away from the cattle shed. He further stated during cross-examination that dimension of Khatkin’s house was East-West 16 yards and North-South 15 yards and toward North of the house of Khatkin was her Courtyard about 2-3 yards. He further stated that the distance of the cattle shed from the wall of Khatkin’s house towards South was about 20-25 yards. He stated that house of Khatkin was between the house of Jograj and cattle shed and it was almost 20-25 yards from the cattle shed. 12. DW-2 Mewaram stated in his statement that after Khatkin’s house got ruined as she died 9-10 years back (deposition is made by Mewaram on 21.12.1972) she died heirless and so the land vested in the Gaon Sabha. He further stated that he got the same land on lease from the Gram Pradhan, Khem Karan and the receipts of payment were executed by the Gram Pradhan himself by putting his thumb impression. He further stated that the land which was allotted to him was 26 yards east-west and 16 yards north-south. He further stated that his land is appurtinant to the Cattle Shed and that he took possession immediately after allotment and raised the wall. He denied that Jograj had ever constructed any wall as claimed by the plaintiff. He further stated that the Commissioner had visited the spot and that time the bricks were available in plinth whereas the upper wall was demolished. However, before the Court he admitted that there were two cattle sheds existing on the spot and there existed entry towards the west. He admitted that a Chapper (thatched roof made of dry grass and remains of paddy crops) towards west of the cattle shed during the cross-examination. It is worth noticing that he admitted in his deposition before the Court that the place where pond existed was the land of Khatkin. During the cross-examination, DW-2 Mewaram admitted that at the time of filing of the written statements the cattle shed alongwith Chapper was in existence and towards the west a passage (Dara). It is worth noticing that he admitted in his deposition before the Court that the place where pond existed was the land of Khatkin. During the cross-examination, DW-2 Mewaram admitted that at the time of filing of the written statements the cattle shed alongwith Chapper was in existence and towards the west a passage (Dara). However, further in the cross-examination when he was read out para 8 of his written statement which carried the averment that the cattle shed of the plaintiff was only in ruined condition and there was no cattle shed and no Charni etc., DW-2 Mewaram stated that he could not say whether the statement was made rightly or wrongly. He, however, admitted that though it was a ruined cattle shed but the cattle used to be there from before his memory. He stated that although before the Commissioner’s visit on the spot it was ruined and the Chapper was placed recently but he did not state so to the Commissioner that it was earlier ruined and it was of late that Chapper was placed over and above the cattle shed. In further cross-examination, which he got recorded after the remand, DW-2 Mewa Ram stated in 1975 that about 14 to 15 years back Khatkin had died. He admitted that according to him the area of Khatkin house was 15 to 16 yards North-South and 25 to 26 yards East-West. Place of pond and the length of land towards South to it would 10 to 12 yards. 13. The testimony of defendants DW-2 Mewaram can be summarised as under : a) the Saar (cattle shed) is admitted towards the South of the pond; b) Khatkin’s house was there which got ruined later on and the land so left vested with the Gaon Sabha and it is the same land which came to be allotted to the defendants vide resolution of the Gaon Sabha dated 1.2.1969; c) the shallowpit (pond) land is claimed to be part of the Khatkin’s house and; d) dimension of the land claimed by the defendants (as allotted to them) is East-West 26 yards and North-South 16 yards. 14. DW-3 Babu Ram tried to support the defence set up by the defendants in the written statement. However, during cross-examination he admitted a wall on the pond and towards the East of the pond house of Jograj and towards East also the land of Jograj. 14. DW-3 Babu Ram tried to support the defence set up by the defendants in the written statement. However, during cross-examination he admitted a wall on the pond and towards the East of the pond house of Jograj and towards East also the land of Jograj. The cattle shed is admitted from the life time of Khatkin and that the pond land is also the land of Khatkin. 15. DW-4 Ram Nath very clearly stated that towards South of the cattle shed there was no land of Khatkin and further during cross-examination he stated that after Khatkin land was dug up by the village people it became a shallow pit and used to get filled with water during rains. 16. The testimony of Panchayat Secretary who entered the witness box as DW-1 may be summarised as under : a) there was resolution of the Gaon Sabha dated 1.2.1969 allotting the land to the defendant, Mewaram. He claimed to have produced original agenda register and minutes register relating to allotment proceedings; b) in his deposition he claims that lease proceedings were held before him but in cross-examination he took a complete ‘u’-turn denying everything; c) he says in his deposition that agenda was issued in his knowledge and that meeting took place before him. However, during cross-examination he completely denied that he was witness to any such proceedings as contained in the register and also denied that minutes were written in his knowledge. He also denied that Pradhan has signed the minutes before him; d) he says that Pradhan is alive and lives in Sujanpur; Defendant No. 3 Jadon S/o Sardar never entered the witness Box to support his pleas in written statement. The Advocate Commissioner’s report, paper No. 105/C is also on record and it is necessary to refer the same for proper adjudication of the issues raised in the present second appeal. Although learned counsel for the defendant-respondents states that he has not accepted the report but he admits at the same time that no objection was filed to the said report. 17. Although learned counsel for the defendant-respondents states that he has not accepted the report but he admits at the same time that no objection was filed to the said report. 17. Learned counsel for the appellants Shri Rahul Srivastava has argued raising three grounds: the First being, plaintiff’s witness completely established his claim regarding the land in suit as Sahen (appurtinant land to his Saar i.e. Cattle shed) and misreading the testimony of DW-2, the lower appellate Court had wrongly upset the findings of the trial Court about the Sahen land as claimed by plaintiff; the Second point argued by the counsel for the appellants is that the defendants had no claim over the land as title holder because the theory of lease of the land in question set up by the defendant could not be proved and the deposition of the Panchayat Secretary ultimately goes against the defendants’ claim of title on the ground of lease; and the Third point argued by the learned counsel for the appellants is that both the plaintiffs and the respondents claim that there was a house of a lady, namely, Khatkin towards north of the Cattle Shed and the land in question is towards the south of the house of Jograj and the defendants admitted that house of Khatkin was over and above the land allotted to him and its part being shallow land (pond) and he argued that the Commissioner’s report proved the area of the shallow land (pond) to be more than 16 yards (48 feet) from the Cattle Shed of the plaintiff so it was proved beyond doubt that the land if at all was allotted to the defendants it was somewhere more than 16 yards away from the land in dispute. 18. Learned counsel for the defendants-respondents based his entire case on lease executed by Gaon Pradhan in his favour vide resolution dated 1.2.1969 of Gaon Sabha in respect of the land which was earlier of Khatkin as she had no heirs to live and got consequently vested in the Gaon Sabha and land in suit is the same land which was allotted to the defendants respondents. Thus, the defendants-respondents disputed the claim of the plaintiff over the land in suit as his Sahen. The defendants had admitted that they had raised a boundary wall over the land in suit which was forcibly demolished by the plaintiff. Thus, the defendants-respondents disputed the claim of the plaintiff over the land in suit as his Sahen. The defendants had admitted that they had raised a boundary wall over the land in suit which was forcibly demolished by the plaintiff. However, there is no counter claim set up by the defendants to set up claim of settled possession of the suit property and they simply contested the suit of the plaintiff as defendants defending their right of a valid lease. 19. Initially the suit of the plaintiff was decreed vide judgment dated 15.3.1973 by the civil judge Shahjahanpur but in the civil appeal No. 30 of 1973 the judgment and decree of the trial Court was set aside and the matter was remanded for decision afresh. It was further observed in judgment that the plaintiff shall give exact dimension of the land in dispute and will suitably amend the plaint. 20. In view of the above order of remand the plaintiff amended the suit by giving the exact dimension of the land which he claimed to be Sahen and total land inclusive of cattle shed was marked as EBCFGH. Thus, the map of the plaint also got amended accordingly. 21. From the perusal of the Advocate Commissioner’s report following facts emerge: a) there is a cemented wall to the North of the cattle shed and about 15-16 yards away; b) the distance of pond in the form of shallow pit is about 16 yards away from cattle shed towards south and; c) the distance between the house of Jograj towards North from the cemented wall is 15-16 yards and there lies open land in between the house of Jograj and cemented wall and it includes pond. 22. 22. From the careful scrutiny of entire oral evidence and documentary evidence and Commissioner’s report the following facts emerge as admitted to the parties : a) there exists Saar (cattle shed) of the plaintiff towards the South of the land in dispute; b) the pond is admitted and it is also admitted to be a part of the land of Khatkin; c) the dimension of the house/land of the Khatkin is not exactly clear and the land which is claimed to be allotted by the defendants to them, was Khatkin’s land including the pond (shallow pit); d) the dimension of the land allotted to the defendants is 26 yards (East-West) X 16 yards (North-South) and is in the area of the pond. 23. From careful reading of both oral evidence and documents filed it also clear that there is a cemented wall towards South of the cattle shed. Thus it is clear that shallow pit in the form of pond land is the land allotted to the defendants. It is clear that the distance of the pond from the cattle shed towards South is more than 15-16 yards so the question is whose land lies between the cemented wall and cattle shed that is about 15-16 yards in length. In between the cattle shed and cemented wall, there exists open land including pond between the cemented wall and house of Jograj. 24. The question therefore, is whether the land that came to be allotted to the defendants is the land between the cemented wall and cattle shed i.e. towards South or the land between the cemented wall and house of Jograj i.e. towards North. Since, the land claimed by the defendants includes the pond as per their own admission, it is clear that it must be towards North of the cemented wall and it lies between the cemented wall of Jograj and his house. It is no body’s case that cemented wall does not exit and it is also no body’s case that pond is towards South of the cemented wall. 25. Further defendants have admitted that pond land as part of land allotted to them and it was Khatkin’s land. The North South length of the allotted land having been admitted to be 16 yards, the land claimed by defendant cannot be said to have stretched to the cattle shed. 25. Further defendants have admitted that pond land as part of land allotted to them and it was Khatkin’s land. The North South length of the allotted land having been admitted to be 16 yards, the land claimed by defendant cannot be said to have stretched to the cattle shed. The length of land falling between the Jograj’s house and cemented wall is 16 yards North-South and the pond and land is indicated to fall at this place. So if pond is part of Khatkin’s land and she had Courtyard towards the pond North-South about 2-3 yards as per PW-2. So Khatkin’s house was definitely 16 yards away from the cattle shed. According to DW-2 he erected wall at place of pond and length of land is 10 to 12 yards towards South. The total width of the land between cemented wall and house of Jograj i.e. East-West is that 25 yards. The East-West of the width of the land being about 25 yards the land of which allotment is claimed by the defendants definitely falls in this area. The total width of East-West of the land in dispute i.e. Sehan (claimed by plaintiff) being only about 15 yards it definitely did not form part of the land allotted to the defendants as the width of the plot from East-West claimed to be 26 yards by the defendants in their statements. 26. Now coming to the findings of the lower appellate Court as recorded on the basis of four boundaries of the land given in allotment proceeding, it is to be examined as to what would have compelled the Court below to place heavy reliance upon the document of lease except presumption. This valid presumption regarding allotment is not justified as Panchayat Secretary during cross-examination completely denied that any act of allotment took place in his presence, and it cannot be said that he proved the allotment proceedings. As the plaintiff denied the allotment, the burden lay upon the defendants to prove the same. The Panchayat Secretary having completely denied the lease proceedings as to have taken place before him and defendants having not produced the Pradhan who had signed the minutes of proceedings and who had himself executed the receipts, it was not correct to raise any presumption regarding execution of lease in favour of defendants. The Panchayat Secretary having completely denied the lease proceedings as to have taken place before him and defendants having not produced the Pradhan who had signed the minutes of proceedings and who had himself executed the receipts, it was not correct to raise any presumption regarding execution of lease in favour of defendants. Looking to the relevant provisions of law the Pradhan does not issue any receipt in respect of lease. The Pradhan only issues lease document under his seal and signature and that too in the capacity of Chairman of Land Management Committee. Neither any certificate of lease has been filed bearing seal and signature of the Pradhan nor, he was produced to prove the minutes of the meeting dated 1.2.1969 and alleged receipts claimed to have been issued in lieu of the premium paid against the lease. Thus, there cannot be any valid presumption. 27. In matters of allotment of land in Abadi site as claimed by the defendants, it is necessary to refer to certain provisions of U.P. Zamindari Abolition and Land Reforms Act (Act No. 1 of 1951) and U.P. Z.A. Rules 1952 framed under Section 128 of Act No. 1 of 1951 and certain directions contained in U.P. Gram Sabha, Gram Punchayat and Bhumi Prabandhak Samiti Manual as these directions are issued under Section 126 of the Act No. 1 of 1951. Chapter VII of the Act No. 1 of 1950 deals with the powers of Land Management Committee regarding allotment of land. 28. Law provides vide Section 122-A of Act No. 1 of 1951 for the management of land vested in the Gaon Sabha under Section 117 of Act No. 1 of 1951 by the Land Management Committee only and in that process it shall be duty of the Land Management Committee and office bearers to carry out the orders and directions issued by the Government and comply with such directions as provided under the Gram Sabha Manual. Section 122A of Act No. 1 of 1951 provides for allotment of abadi site etc. The provisions as contained under Section 122A of the Act No. 1 of 1951 at relevant point of time read as under : 122-A. Superintendence, Management and control of land, etc. Section 122A of Act No. 1 of 1951 provides for allotment of abadi site etc. The provisions as contained under Section 122A of the Act No. 1 of 1951 at relevant point of time read as under : 122-A. Superintendence, Management and control of land, etc. by the Land Management Committee—(I) Subject to the provisions of this Act the Land Management Committee shall, as from the specified date, be charge for and on behalf of the Gaon Samaj, with the general superintendence, management, preservation and control of the land, forests within village boundaries, trees (other than in a holding grove or abadi), fisheries, tanks, ponds, water channels, pathways, abadi sites and hats, bazars and mela vested in the Gaon Samaj under Section 117. (2) Without prejudice to the generality of the foregoing provisions, the functions and duties of the Land Management Committee shall include— (a) the setting and management of land— (b) the conduct and prosecution of suits and proceedings by or against the Gaon Samaj; (c) the development and improvement of agriculture; (d) the preservation, maintenance and development of forests and trees; (e) the maintenance and development of abadi sites and village communications; (f) the management of hats, bazars and melas; (g) the development of co-operative farming; (h) the development of animal husbandry which includes pisciculture and poultry farming; (i) the consolidation of holdings; (j) the development of cottage industries; (k) the maintenance and development of fisheries and tanks; and (l) such other matters as may be prescribed. (3) Subject to such conditions as may be prescribed, Chairman or any other office-bearer or member of the Land Management Committee, be entitled to sign any document and to do all other things for the conduct and prosecution suits and other proceedings. 29. Rule 115 of U.P.Z.A. Rules 1952 as it then existed before subsequent amendments, laid down procedure for allotment of land of abadi site. Rule 115-L reads as under : 115-L. Abadi sites situate in the abadi or in the waste land of the area vested in the Gaon Samaj shall be allotted for the purpose of construction of buildings in the following order of preference— (a) a landless agricultural labourer or a landless servant of the village community such as Barhai, Dhobi, Lohar, Sweeper, etc. (b) a bhumidhar, sirdar or adhivasi, who is holding less than 5 standard bighas, (c) others. (b) a bhumidhar, sirdar or adhivasi, who is holding less than 5 standard bighas, (c) others. Allotment shall be made on the result of public auction held for this purpose. The exact location of the site to be auctioned, the time, the date and venue of the auction shall be announced by beat of drum in the circle of the Gaon Samaj: Provided that - (i) no auction shall be held where any of the applicants requires a site for the construction of a building for a charitable purpose. In case of such an applicant, the site shall be allotted to him without payment of premium. If there are more than one such applicants, the Land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector incharge of the sub-division. (ii) The provisions of clause (i) shall also apply in cases where an applicant requires a site for setting up cottage industry, provided that a certificate to this effect is obtained from the Assistant Collector incharge of the sub-division. In case where there are two applicants for a site, one requiring it for charitable purpose and the other for setting up cottage industry, the Land Management Committee shall decide as to whom the site may be allotted. The decision of the Land Management Committee in this respect shall be final subject to confirmation by the Assistant Collector, incharge of the sub-division. (iii) Abadi sites in the area earmarked for abadi in the waste land shall not be put to auction unless there are more applicants than the sites available: Provided also that the provisions of this Rule shall not apply in case where the abadi site is required for settling those who have lost their houses on account of floods. In such cases the land will be earmarked and allotted by the Land Management Committee directions of the Collector. 30. From the bare perusal of the above quoted provision it is clear that except in case where a person wants to construct building for charitable purposes, or where applicant apply for a site for setting up cottage industry and exception is also applicable to the area of waste land. Further exception is in those cases where a person has lost his house on account of floods. Further exception is in those cases where a person has lost his house on account of floods. Thus in all other cases there will be auction of abadi sites and such auction will be open to all persons residing in the circle of Gram Samaj. Rule 115-M is relevant here to be referred to reads as under : 115-M. Subject to the provisions of rule 115-L, the auction for abadi sites for constructions of houses shall be open to all persons residing in the circle of the Gaon Samaj. The first bidding shall be confined among the persons of the categories (b) and (c) mentioned in the rule 115-L, and the highest bid shall be recorded. Immediately thereafter, there shall be a second bidding among the persons of the category (a) mentioned in the rule 115-L. The highest bid in the second bidding, provided it is not less than 25 per cent of the highest bid recorded in the first bidding, shall be taken as the final bid and accepted, failing which the highest bid recorded in the first bidding shall be taken as the final bid and accepted if the bidder belongs to category (b) mentioned in rule 115-L. If the highest bid recorded in the first bidding is of the person belonging to category (c), the highest bidder among the persons of category (b) shall be given an option to pay the amount of the highest bid recorded in the first bidding. If he agrees to pay the amount, his offer shall be accepted, and if not, the highest bid recorded in the first bidding shall be taken as final and accepted. The persons whose bid is accepted, shall be required to pay one-fourth of the bid money immediately and the balance within a time to be fixed by the Land Management Committee. If the balance is not paid within the time so fixed, the advance money shall be liable to forfeiture in the discretion of the Land Management Committee. Explanation : The definition of landless agricultural labourer shall be the same as given in the explanation to rule 175. 31. The defendants in present case definitely do not fall under any of the exceptions detailed in Rule 115-N and therefore, they had to participate in auction to be held. Explanation : The definition of landless agricultural labourer shall be the same as given in the explanation to rule 175. 31. The defendants in present case definitely do not fall under any of the exceptions detailed in Rule 115-N and therefore, they had to participate in auction to be held. A villager shall be allotted land in the event of his bid being highest and on payment of the bid money. 32. Thus from the above, it is clear that it is the Land Management Committee of the Gaon Sabha that is entitled to make allotment. No meeting of the Gaon Sabha/Gram Samaj is called for this purpose, nor, Gaon Sabha is required to pass any resolution. The Pradhan in individual capacity has no role to play. 33. In the present case the defendants have not led any single evidence in the form of document prepared and issued inasmuch as no resolution of the Land Management Committee has been filed and no document has been filed worth name a certificate of lease’ and even there is no whisper of the same either in the statement of defendants or in the statement of Panchayat Secretary. All that has been filed is the resolution of the Gaon Sabha and receipt issued by the Pradhan. Looking to the two documents filed, it can safely be said that these resolutions are not by Land Management Committee. The Pradhan was authorized to execute sale of the land by Gaon Sabha for certain person. The land was in fact sold and surprisingly measured also on the spot at the time resolution was being passed which was next to impossible. 34. There cannot be any such execution for sale of land of abadi site under law. All that could be said that allotment of lease creats life time interest. Para 46(7) of Gaon Sabha Manual is also relevant and is quoted hereunder. “Para 46 (7) If the building is abandoned or if the owner thereof dies without any heir entitled to succeed, the land or site shall escheat to the State.” 35. Law required firstly, resolution to be passed, then lease certificate to be issued and thereafter only possession to be given by doing measurement on the spot. 36. Even from the statement of Gram Punchayat Secretary it is clearly established that no meeting of Land Management Committee was held. Law required firstly, resolution to be passed, then lease certificate to be issued and thereafter only possession to be given by doing measurement on the spot. 36. Even from the statement of Gram Punchayat Secretary it is clearly established that no meeting of Land Management Committee was held. No list of eligible person was prepared and no notice was circulated in the Gaon Sabha, atleast there is no evidence to that effect. Further it was not an allotment as the first resolution shows as if meeting was convened to sell the land to defendants. Here it is necessary to refer to Rule 115 (R) UPZA Rules, 1952 that clearly states that allotment of abadi sites is for construction of home and life time interest is only created. The right is heritable but no transferable right is ever created in the land. Rule 115 (R) reads as under : 115-R. (1) Where any land or site is allotted in accordance with rule 115-L to Rule 115-Q, and house is built thereon or not, then subject to the provisions of sub-rule (2), the allottee, and in case of death of allottee, his heirs shall have no right to transfer such land, site or house within a period of ten years from the date of allotment. 37. Thus the very resolution was illegal and if land was sold, it was void and nonest and no right will accrue to the defendants. However, it would be proper to reproduce the two resolutions filed by the defendants in the suit for better appreciation of controversy regarding allotment of abadi site as claimed by the defendants in this case. 38. Thus the very resolution was illegal and if land was sold, it was void and nonest and no right will accrue to the defendants. However, it would be proper to reproduce the two resolutions filed by the defendants in the suit for better appreciation of controversy regarding allotment of abadi site as claimed by the defendants in this case. 38. The two resolutions were passed by the Gaon Sabha/Dolapur dated 26.1.1969 and 1.2.1969 are quoted hereunder: ^^vkt rkjh[k 26-1-1969 dks xkao lekt nksykiqj dh ehfVax fnu ds 12 cts iz/kku [ksedju dh ekStnxh esa nksykiqj esa brokjh dh pkSiky ij gqbZA fiNyh ehfVax i<+h xbZ rFkk rlyhe dh xbZ xkao lekt dh vkcknh uhyke dh rkjh[k yxkbZ xbZ tks vkt gSA ;g vkjkth xkao ds iwoZ esa gS gjn;ky dh lkj ds mRrj esa gS ftlds lEca/k esa ekSds ij cksyh cksyus dh MqXxh fiVkbZ xbZ yksx bdV~Bs gq, blds [kjhnkj esokjke tn~nw gq, buds vykok dksbZ [kjhnkj ugha gqvkA ns[kdj nqckjk uhyke dh rkjh[k 1-2-1969 yxkbZ xbZA ukjk;u flag esEcj us crk;k fd vxyh rkjh[k ij bl txg dks t:j csp fn;k tkos bl txg uhyke dh MqXxh iz/kku rkjh[k vkSj le; dh fiVok nsa vkSj lkFk esa vkdj iz/kku uhyke dj nsa vkSj uhyke esa cksyh cksyus okys cksyh u yxkos rks tks :i;k ns vkSj ftls txg dh t:jr gks mls fy[k nsaA** 39. The first resolution dated 26.1.1969 is that there is land in the North of cattle shed of Hardayal. The only purchaser is Mewaram and Jaddu and no other person. The next date fixed for auction is 1.2.1969. On the next date this land will be sold. The date and time of second auction should be notified by beat of drum if nobody turns up for a bid, the land be sold by Pradhan to the person who offers money and requires the land. The next date fixed for auction is 1.2.1969. On the next date this land will be sold. The date and time of second auction should be notified by beat of drum if nobody turns up for a bid, the land be sold by Pradhan to the person who offers money and requires the land. ^^vkt fnukad 1-2-1969 dks xzke lekt nksykiqj dh cSBd fnu ds 1 cts iz/kku [ksedju dh ns[kjs[k esa j?kqukFk dh pkSiky ij nksykiqj esa dh xbZA ¼1½ fiNyh ehfVax i<+dj lqukbZ xbZ rFkk eEcjksa }kjk rlyhe dh xbZA ¼2½ brokjh esEcj us crk;k fd yksxksa ds ikl jgus dh txg ugha gS iz/kku bu yksxksa dks vkcknh dh tks txg NksM+h xbZ gS mlesa ls fy[k nsa ftldh rLnhd yYyw flag esEcj us dh rFkk izLrko lc esEcjksa }kjk eatwj fd;k x;kA ukjk;u flag esEcj us crk;k fd xzke lekt dh tehu dh yksxksa dks t:jr gSA mu lHkh yksxksa dks ftudks txg dh t:jr gS nh tkosA ukjk;u flag esEcj us crk;k fd nksykiqj xkao esa esokjke iq= uUgw tn~nw iq= ljnkj dks txg dh cgqr cM+h fnDdr gS xkao ds iwoZ dh vksj gjn;ky] njckjh dh lkj ds mRrj dh vksj tks [kVfdu dk [kM+gjk gS tks xzke lekt ds vf/kdkj esa gSA ftldh pkSgn~nh bl izdkj gS mRrj esa edku tksxjkt iwju if'pe esa jkLrk nf{k.k esa lkj gjn;ky iwoZ esa pdjksM+ gS ftles ls esokjke dks mRrj nf{k.k 16 xt vkSj iwoZ if'pe 19 xt blh izdkj 16 xq.kk 7 xt tn~nw dks nh tkos esokjke ls 40@tn~nw ls 10@ysdj iz/kku jlhn dkV ns ftldks lHkh esEcjksa us rlyhe fd;kA vkSj :i;k ysdj jlhn c;ku ns nh vkSj ekSds ij txg uki nhA** 40. The second resolution dated 1.2.1969 is that member Itwari suggested that Pradhan should give land to those who require after verification by member Lallu Singh and the resolution is adopted. Narayan Singh says Mewa Ram S/o Nanhe and Jaddu S/o Sardar are in much need of the site. In the East of village there is cattle shed of Hardayal and towards North of cattle shed there is house of Khatkin which is now ruined and is under the authority of Gram Samaj. Narayan Singh says Mewa Ram S/o Nanhe and Jaddu S/o Sardar are in much need of the site. In the East of village there is cattle shed of Hardayal and towards North of cattle shed there is house of Khatkin which is now ruined and is under the authority of Gram Samaj. The four boundaries are : North - House of Jograj, East and West Road, South cattle shed of Hardayal, out of which measuring North-South 16 yards and East-West 19 yards to be given to Mewa Ram and so also to one Jaddu measuring 16x9 yards and Rs. 40 and Rs. 10 respectively be charged by Pradhan who will take money and issue receipt. On the spot land was measured. 41. It is very interesting to see that there was no meeting of Land Management Committee, no list of eligible candidates. 42. It is established that there was no allotment certificate with regard to the abadi land as claimed to be allotted to the defendants for the construction of the house. 43. Further once land of the house of Khatkin vested in the State under para 46(7) of the Gram Sabha Manual as she died issuless admittedly, it required a notification under Section 117 of the Act No. 1 of 1941 for transfer of the same to the Gaon Sabha. Thus, the theory of allotment of abadi site and thereby claim over the land as set up by defendants is absolutely untenable in law nor, there is any possession memo prepared giving possession of land with exact dimension to the defendants. Thus in view of the above, the substantial question of law A is decided in affirmative and against the defendants. 44. The lower appellate Court further non-suited the plaintiff-appellant by recording finding that there cannot be Sahen to cattle shed as it is always a land appurtinant to house that is called Sahen. House of the plaintiff towards west of cattle shed is not denied. The land in suit lies towards South of the cattle shed. In village area cattle shed is always adjacent to the house. House of the plaintiff towards west of cattle shed is not denied. The land in suit lies towards South of the cattle shed. In village area cattle shed is always adjacent to the house. There is open Courtyard surrounded by boundaries in between the dwelling room and cattle shed and after the cattle shed there is open piece of land which is used in the morning and evening time to tether cattle in open and it is always used by the villagers to spend leizure time. It is this land which is called a Sahen. Sahen means a land appurtinant to the house for enjoyment of the house. In village house is not a place where people live alone but consist of a living place inclusive of the place where cattle are kept. The cattle are part and parcel of the village life and in day today life cattle are used by the villagers for agricultural and other purposes. Milking cows and Buffaloes and even carriage of goods (Bullock cart) are all part and parcel of the routine life in villages. The human dwelling in village area should be construed in this wider sense as compared to the urban dwelling where the house is an area surrounded by the boundaries and recorded as house in the municipal records of the municipalities. So in the village area house will include the place where cattle are kept and the land therefore, which is appurtinant to such a cattle shed would be a land to be called as ‘Sahen’ and is used to keep cattle etc. and also to keep Charni, Khuta etc. to feed there, usually in the morning and after coming from the fields. 45. Sahen is an Arbic word that means ‘Angan’ open place appurtinant to the house in village where apart from cattle and other domestic animals even people sit and spend day time during winter and evening in other season. This word has been borrowed in India to indicate open space outside the house in village. There is no length and width specified any where for such an open place which is not even surrounded by boundaries. In villages in India and particularly in State of Uttar Pradesh we find every home has open land appurtinant to it and usually these are of reasonable size in terms of measurement. 46. There is no length and width specified any where for such an open place which is not even surrounded by boundaries. In villages in India and particularly in State of Uttar Pradesh we find every home has open land appurtinant to it and usually these are of reasonable size in terms of measurement. 46. The house has come to be defined with reference to human dwelling, although in different context for levy of tax, in the judgment of Apex Court in the case of The Tata Engineering and Locomotive Company Ltd. v. The Gram Panchayat, Pimpri Waghere, (1976) 4 SCC 177 . This judgment although is in different context, but in its wider sense house has come to be defined. The relevant paragraphs are worth mentioning here as well for the purposes of larger concept of human dwelling house. 47. Paragraphs 19, 20 and 21 of the judgment (supra) read as under : 19. The idea of the varieties of meanings can be had from the subject-matter of the statute. A consecrated church was treated as a house as regard the Building Line which a local authority has a right to prescribe. (See Folkes tone v. Woodward). Under the Public Health Act, 1875 “house” was not limited to an ordinary dwelling house and included a day school having no boarders and where none of the staff resided. See Wimbledon v. Hastings (supra). Under the Compulsory Purchase Act, 1965 “house” has been extended to a building which is used for business purposes and is not restricted to mere dwelling houses (see Ravenseft Properties v. London Borough of Hillingdon) 20. The weight of judicial opinion is conclusively in favour of the view that the word “house” extends to a building which is used for business and should not be restricted to a mere dwelling house (see Land Law, Cases and Materials by R.H. Mandsley and E.H. Burn, Third Edition, P. 832) 21. In Corpus Juris Secundum, Vol. 41, page 364 it is said that in a legal sense, the word “house” is more comprehensive, but it is not limited to a structure designed for human habitation, and may mean a building or shed intended or used as a habitation or shelter for animals of any kind, a building in the ordinary sense or any building, edifice, or structure enclosed with walls and covered, regardless of the facd of human habitation. Again in Corpus Juris Secundum, Vol. 41, page 365 it is said that under particular circumstances, the term has been held equivalent to and interchangeable or synonymous with “building”, “dwelling” and “dwelling house” and sometimes “premises”. 48. The Sahen (land appurtinant to the house) has come to be considered by the Apex Court in Maharaj Singh v. State of U.P., 1971 SCC 155 . The Court while considering the word appurtinant with reference to the land appurtinant to building or house has held : “Appurtenance”, in relation to a dwelling, or to a school, college... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined, Butterworths, 2nd edn.): “The word ‘appurtenances’ has a distinct and definite meaning ...Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned. Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression ‘appurtenance’. If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that these lands are covered by the expression ‘appurtenance.’ Indeed ‘it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land. The word ‘appurtenances’ includes all the incorporal hereditaments attached to the land granted or demised, such as rights of way, of common.. but it does not include lands in addition to that granted’” (Words and Phrases, supra). In short, the touchstone of ‘appurtenance’ is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building........)”. 49. Thus, it is a question to be considered as to in what sense in a given facts and circumstances we understand a Sahen to be. As in the present case we have to consider whether the cattle shed is part of the house and land appurtinant to the cattle shed is to be considered as Sahen or not. 49. Thus, it is a question to be considered as to in what sense in a given facts and circumstances we understand a Sahen to be. As in the present case we have to consider whether the cattle shed is part of the house and land appurtinant to the cattle shed is to be considered as Sahen or not. Considering the words Sahen Darwaja in the case of Ram Sukh v. Gaya Din (Allad., HC-LB) 1994 RD, this Court quoted certain observations of the then Chief Court of Awadh and held thus : It is also well-settled that a Riaya may have the Sahan Darwaza on all the sides of a house. It is user or the land on the date of vesting and prior thereto is material. The passing of a galiyara or Rasta or drain in between the building or house and the land over which in relation to a building or house, the rights of appurtenance is claimed, does not adversely affect the sahan darwaza right or rights involving rights of a person to a land as land appurtenant. In the case of Special Manager Court of Wards, Balrampur Estate v. Shyam Lal, it has been held by the Chief Court of Oudh, that land appurtenant to residential house need not be actually adjoining the house and the user of the land for the enjoyment of the house by the claimant or by person is necessary to be proved with certain length of period may be of 12 years as held by Chief Court of Oudh in the case of S. Murtaza Ali v. Emperor. The material observation of the Hon’ble Chief Court of Oudh in the case of Balrampur Estate (Supra) reads as under : “As to the argument that the land in question cannot be treated as appurtenant to house because there is a public road intervening I do not think there is any force in the contention. No authority has been cited for the view that appurtenant land must actually be adjoining the residential house, prima facie, I do not see why a tenant should not use land opposite his house but on the other side of public way for the purpose of tethering his cattle and why such land should not be regarded as appurtenant to his house. In absence of any authority to the contrary I think it may be held that the land is appurtenant. 50. In yet another case Municipal Corporation of Delhi and another v. Naresh Kumar and others, (1997) 4 SCC 766 . The Apex Court has held that what would a dwelling house mean and what the land would be called as appurtenant to it for its proper and convenient enjoyment, would depend upon case to case. Thus no rule can be made as to what could be the exact measurement of the land to be called appurtinant land. In other words, it is to be seen as to whether the land which is claimed as Sahen is really for the use and enjoyment of the dwelling house or not. Relying upon this judgment the Apex Court in the case of Municipal Corporation of Delhi v. Rishi Raj Jain, 2006 (13) SCC 246, has held that it is not for the High Court to issue a direction in this behalf as has been sought to be done by the impugned judgment and each case has to be considered on its own facts. The superior Courts do not issue guidelines and it is to be considered as to in a given case what is dwelling house and what land surrounding it would be called a Sahen or in other words land appurtenant. 51. Thus Sahen land (appurtinant land to the house) should be taken to be the one appurtinant to cattle shed as well. In the instant case cattle shed being adjacent to the house of plaintiff, the land in suit appurtinant to the cattle shed would be the land used as Sehan for enjoyment of the house. Here in this case the land falls between the cemented wall and the cattle shed and there being no pond over it, admittedly, this land can safely be said as being used and also in possession of the plaintiff as his ‘Sahen’. 52. Here in this case the land falls between the cemented wall and the cattle shed and there being no pond over it, admittedly, this land can safely be said as being used and also in possession of the plaintiff as his ‘Sahen’. 52. In view of the above, I hold that the plaintiff has been able to set up his claim over and above the land in suit as his Sahen (appurtinant land) and the claim of lease of abadi site in respect of this land could not be proved by the defendants and even if, there was any lease executed in their favour, it was in respect of some land 15-16 yards away towards North from the cattle shed of the plaintiff. In this case defendants have not claimed any possessory title. The land in suit is claimed to be the land under allotment and once it is held in earlier part of this judgment that land in suit is not the abadi site claimed under allotment by the defendants, the defence ends. The findings to the contrary recorded by the Court below in civil appeal is liable to be reversed and is hereby reversed and the substantial question of law B is accordingly decided in affirmative and in favour of plaintiff-appellant to allow this appeal. 53. Thus land in suit is a Sahen of the plaintiff and he being in possession over the same, is entitled to have injunction in respect thereof and restoration of possession of the place over which temporary wall was initially erected by the defendants. The judgment and decree of the IInd Additional District Judge, Shahjahanpur in Civil Appeal No. 67 of 1975 is set aside and judgment and decree passed in O.S. No. 194 of 1969 is hereby restored. 54. The second appeal stands allowed. Cost made easy.