JUDGMENT By the Court.—This is plaintiff’s appeal under Section 96 of Code of Civil Procedure (hereinafter referred to as ‘CPC’) arising from judgment dated 8.4.2008 and decree dated 15.4.2008 passed by Sri Hetram, Additional District Judge, Court No. 3, Bulandshahr in Original Suit No. 163 of 2000 whereby Court below has dismissed the suit. 2. Plaintiff-appellant Subodh Kumar (hereinafter referred to as ‘appellant’) instituted aforesaid suit in Court of Civil Judge (Senior Division), Bulandshahr vide plaint dated 23.2.2000 seeking a declaratory decree that he is owner of property situate at Bulandshahr City, and, shown in the map appended to plaint, as ABCD, and boundaries whereof are mentioned at the bottom of plaint. Plaintiff also prayed for a decree of mandatory injunction directing defendants/respondents to remove ‘malba’ of standing building at disputed land within the time as provided by Court, failing which Court should direct for removal of ‘malba’ from such agency as it deems fit, and, get disputed land vacated. 3. Plaint case set up by appellant is that Ram Sukh Das, son of Sri Moti Ram, a predecessor in interest of appellant was in possession of disputed property as ‘owner’, being a Revenue Free Grantee (‘maafi dawam’). Disputed land bears gata No. 980, area 10 bigha, 2 biswa under ‘Kari’ settlement. District Bulandshahr was formed in 1932. For maintaining law and order in District Bulandshahr, the then Government planned to construct a District Jail and on request of Government, Ramsukh Das, predecessor of appellant, permitted the then Government to construct District Jail and ‘Phansighar’ at disputed land. Consequently with permission of Ramsukh Das, a District Jail and ‘Phansighar’ was constructed on the land in dispute in 1835 and the then Government started use thereof. Permission was granted only for establishing District Jail and ‘Phansighar’ and not for any other purpose. 4. Gata No. 980 assigned in ‘Kari’ settlement, changed to gata Nos. 668, 669 and 670 in ‘Stoker’ settlement and it further changed to gata Nos. 775, 776 and 777 in ‘Philips’ settlement. 5. In 1858, when British Government acceded Indian territory by taking it over from East-India Company, the aforesaid conditions with respect to District Jail and ‘Phansighar’ continued and ownership of property in dispute continued with appellant’s predecessors, Ramsukh Das. 668, 669 and 670 in ‘Stoker’ settlement and it further changed to gata Nos. 775, 776 and 777 in ‘Philips’ settlement. 5. In 1858, when British Government acceded Indian territory by taking it over from East-India Company, the aforesaid conditions with respect to District Jail and ‘Phansighar’ continued and ownership of property in dispute continued with appellant’s predecessors, Ramsukh Das. In a letter dated 19th July, 1862, sent by Ramsukh Das to the then Collector, in respect to the aforesaid property, he said to have bequeathed disputed property to his grand son Mohan Lal, son of Jamuna Prasad. From Mohan Lal, property in dispute, was succeeded by Kali Charan who vide Will dated 7th June, 1976 made appellant, as sole owner thereof. Disputed property is not “Nazul” by any means in as much as it was not declared land acceded due to running away of its true owner or due to death of owners issue-less or otherwise. None of the owners of property in dispute revolted against Government and hence it was not a ‘Nazul’. 6. Kali Charan died on 9th October, 1976 and since then plaintiff-appellant is sole owner of disputed property in view of Will dated 7th June, 1976. 7. Government shifted District Jail to Village Chanderu, G.T. Road where a new District Jail has been constructed and possession thereof has also been taken by defendant/respondent 1. It has been completely transferred on 30.1.2000. Disputed property is not being used for the purpose of Jail since it has now been shifted to a new place. Therefore, purpose for which permission to use land in dispute was granted by Ramsukh Das has come to an end. Land in dispute has never been acquired nor requisitioned nor compensation thereof has ever been paid to appellant or any of his predecessor. Disputed property is owned and vested in appellant. He informed Collector and Jail Superintendent, Bulandshahr that now use and purpose for which disputed land was given to State has ceased, therefore, permission has also come to an end. This information was given to defendants in writing through a notice. Respondents were requested to handover possession of disputed land to appellant but defendants are not ready to do so. They want to change use of disputed land though have no such right being not owner of property in dispute. This information was given to defendants in writing through a notice. Respondents were requested to handover possession of disputed land to appellant but defendants are not ready to do so. They want to change use of disputed land though have no such right being not owner of property in dispute. Written notice dated 7.12.1999 was given to defendants by registered post dated 8.12.1999 and same has been served upon defendants-respondents on 9.12.1999. After cessation of permission of use of property in dispute, appellant is entitled to get it vacated from respondents, who have established a park, namely, Kamla Park on south-west side of disputed land and now have also raised construction of their office. Nagar Palika Parishad who had constructed Kamla Park and its office, is only licencee permitted by Jail authorities and has no right or interest in disputed property what to say of any better right over property in dispute. 8. Defendant-respondents-1 and 2, both, filed a combined written statement disputing entire case set up by appellant. It is pleaded that disputed land is ‘Nazul’ and Ramsukh Das had no ownership or possession of disputed land at any point of time. Construction of District Jail and ‘Phansighar’ was made by the then Government on its own land, hence question of alleged permission by Ramsukh Das did not arise. Neither any document nor alleged permission has been proved by any document executed at any point of time. No details have been given. Therefore, plaint is defective under Order 1, Rule 4 CPC. Since appellant or its predecessors were neither owner nor in possession of property in dispute, the question of getting it vacated does not arise. Disputed land was registered as gata Nos. 775, 776 and 777 in “Phillips Bandobast” and shown as land owned by Government. There existed District Jail etc. mentioned in above settlement. Other allegations are not correct. Letter dated 19.7.1862 was also denied and it is said that there is no such document. It is forged and fictitious. Shifting of District Jail to a new place is not disputed but claim of plaintiff is denied. Pleas of adverse possession, bar of suit under Sections 34, 38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as ‘Act, 1963’), estoppel, acquiescence and estoppel by conduct were also taken in written statement. 9. It is forged and fictitious. Shifting of District Jail to a new place is not disputed but claim of plaintiff is denied. Pleas of adverse possession, bar of suit under Sections 34, 38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as ‘Act, 1963’), estoppel, acquiescence and estoppel by conduct were also taken in written statement. 9. Nagar Palika Parishad, defendant No. 3, filed a separate written statement wherein it also contested suit denying allegations of appellant and stated that disputed land is ‘Nazul’ and owned by Government. Is is also said that Nagar Palika Parishad has possession of gata No. 775, area 0.152 hectare i.e. 12 Biswa and rest is with State Government. 10. Plaintiff got plaint amended by insertion of para 40A in which he disputed fact that land in question is a “Nazul land” and after amendment of plaint an additional written statement dated 16.4.2002 was also filed by defendants-1 and 2 wherein also they disputed claim set up by appellant that disputed land is not Nazul. 11. Appellant filed a replication dated 18.10.2004 wherein he reiterated his claim set up in plaint and said that provisions of U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (hereinafter referred to as ‘U.P. Act, 1956’) are not applicable to disputed land. 12. 11. Appellant filed a replication dated 18.10.2004 wherein he reiterated his claim set up in plaint and said that provisions of U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (hereinafter referred to as ‘U.P. Act, 1956’) are not applicable to disputed land. 12. Trial Court formulated 15 issues, as under: 1- D;k oknh] fookfnr lEifRr ftls okni= ds vUr esa uD'ks esa vŒcŒlŒnaŒ ls nf'kZr fd;k x;k gS] ds Lokeh vkSj dkfct gS\ 2- D;k oknh dk fookfnr lEifRr ftls okni= ds vUr esa uD'ks esa v{kj vŒcŒlaŒnŒ ls nf'kZr fd;k x;k gS] ls eyok gVokdj dCtk izkIr djus dk vf/kdkjh gS\ 3- D;k izfroknhx.k izfrdwy dCts ds vkèkkj ij fookfnr lEifRr ij ekfyd ,oa dkfct gks x;s gSa\ 4- D;k oknh /kkjk 34 o 38 o 41 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 5- D;k nkok oknh foca/ku ,oa ekSu lgefr ds fl)kUr ls ckf/kr gS\ 6- D;k okn dkyckf/kr gS\ 7- D;k oknh }kjk fd;k x;k U;k;'kqYd de gS vkSj iznRr U;k;'kqYd vi;kZIr gS\ 8- D;k nkok oknh vkns'k 7 fu;e 11 O;; izŒlŒ ds vUrxZr fujLr fd;s tkus ;ksX; gS\ 9- D;k nkok oknh iks"k.kh; ugha gS\ 10- D;k oknh dksbZ vuqrks"k ikus dk vfèkdkjh gS\ 11- D;k nkok oknh vkns'k 6 fu;e 4 O;; izŒlŒ ls ckf/kr gS\ 12- D;k nkok oknh vkns'k 7 fu;e 11 O;; izŒlŒ fujLr fd;s tkus ;ksX; gS\ 13- D;k oknh us dfFkr ykblsal [kafMr dj fn;k gS tSlk fd okni= esa dgk x;k gS\ 14- D;k bl U;k;ky; dks bl okn dh lquokbZ dk {ks=kf/kdkj izkIr ugha gS] tSlk fd oknksRrj ds izLrj 34 esa dgk x;k gS\ 15- D;k ;g okn uxj ikfydk vf/kfu;e dh /kkjk 326 ds izko/kku ls ckf/kr gS\ (English Translation by Court) 1. Whether the plaintiff is owner having possession over the disputed property shown by letters A.B.C.D. in the site-map given on the bottom of the plaint? 2. Whether the plaintiff is entitled to get possession by getting the debris removed from the disputed property shown by letters A.B.C.D. in the site-map given on the bottom of the plaint? 3. Whether the defendants have become owners with possession over the disputed property on the strength of adverse possession? 4. Whether the claim of the plaintiff is barred by Sections 34, 38 and 41 of the Specific Relief Act? 5. 3. Whether the defendants have become owners with possession over the disputed property on the strength of adverse possession? 4. Whether the claim of the plaintiff is barred by Sections 34, 38 and 41 of the Specific Relief Act? 5. Whether the claim of the plaintiff is barred by principles of estoppel and acquiescence. 6. Whether the suit is time barred? 7. Whether the Court-fee paid by the plaintiff is insufficient? 8. Whether the claim of the plaintiff is liable to be rejected under Order 7 Rule 11 of the CPC? 9. Whether the claim of the plaintiff is not maintainable? 10. Whether the plaintiff is entitled to get any relief? 11. Whether the claim of the plaintiff is barred by Order 6 Rule 4 of the CPC? 12. Whether the claim of the plaintiff is liable to be rejected under Order 7 Rule 11 of the CPC? 13. Whether the plaintiff has rescinded the alleged licence as stated in the plaint? 14. Whether this Court has no jurisdiction to hear this suit, as stated in Para 34 to the plaint? 15. Whether this suit is barred by the provision of Section 326 of Municipality Act? 13. Issue 1 which was crucial to entire matter, answered against plaintiff. Though it held that defendants-1 and 2 could not adduce any evidence to show that disputed land was ‘Nazul’ but in 1272 fasli, ‘Kari’ Bandobast, it was shown as ‘Government land’ and, therefore, Government is owner thereof and otherwise plea taken by plaintiff was not correct. Trial Court also observed that in written statement land is said to be ‘Nazul’ but it could not be specifically proved by defendants still since plaintiff could not adduce any evidence to show his ownership or possession of disputed land, therefore, issue 1 has to be answered against plaintiff. Issue 3 relates to defendants pleas of adverse possession but it has been answered against defendants on the ground that there was no pleading that land belong to Ramsukh Das and defendants had an open, hostile possession of disputed land to the knowledge of its owner and acquired title after expiry of period of limitation i.e. 12 years by way of adverse possession. Issue 5 relating to Estoppel and Acquiescence was also answered against defendants for the reason that plaintiff himself having failed to show any alleged permission, question of its acquiescence or estoppel does not arise. Issue 5 relating to Estoppel and Acquiescence was also answered against defendants for the reason that plaintiff himself having failed to show any alleged permission, question of its acquiescence or estoppel does not arise. Issue 6 relating to limitation was also answered against defendants. Issue 7 relating to Court fees already answered by Trial Court vide its order dated 30.7.2003 as preliminary issue, and, in favour of plaintiff. Then issue 8, whether plaint is liable to be rejected under Order 7 Rule 4 was also answered against defendants. Issue 11 relates to the question whether suit is barred under Order 6, Rule 4 CPC and answered against defendants. Issue 12 was found a repetition of Issue 8 hence cancelled. Issue 13 was answered against plaintiff, holding that it has not proved any ‘licence’ hence question of revocation of licence does not arise. Issue 14 relating to jurisdiction of Civil Court was answered against defendants holding that Civil Court has jurisdiction to try suit. Issue 15 relates to notice under Section 326 U.P. Nagar Palika Adhiniyam, 1916 (hereinafter referred to as ‘U.P. Act, 1916’) and answered against defendant 3. Issue 2 thereafter was taken and holding that since plaintiff-appellant has failed to prove its ownership or title over property in dispute, hence question of removal of ‘malba’ by defendants from disputed property does not arise. Consequently vide judgment and decree dated 8.4.2008, impugned in this appeal, suit has been dismissed by Court below. 14. Sri P.N. Saxena, Senior Advocate assisted by Sri Subhash Chandra Yadav, Advocate has advanced submissions on behalf of appellant and learned Standing Counsel for respondents-1 and 2 has made his submission. 15. Sri Saxena urged that in ‘Kari’ settlement, plot No. 980 area 10 bigha, 2 biswa, was recorded in the name of Ram Sukh Das. In ‘Stoker’ settlement plot No. 980 of Kari settlement was given new numbers as 668, 669 and 670 and lastly in ‘Philips’ settlement, above plots were given new numbers as 775, 776 and 777 which show that Ramsukh Das was owner of land in dispute and Court below has erred in law by ignoring and not appreciating evidence which was available on record. Will dated 18.7.1862 executed by Sri Ramsukh Das is also on record being paper No. 65C/108C wherein it was mentioned by author of Will i.e. Ramsukh Das that he is owner of property in dispute over which, with his permission, District Jail was constructed in 1835 with a condition that whenever object of Jail would be over, land would be delivered back to him or his successor. He further stated in Will dated 18.7.1862 that during his lifetime he will continue to be owner of disputed land and if it is delivered back it shall be to himself but after his life, his grandson Mohan Lal, son of Jamuna Prasad would be entitled for delivery of disputed land to whom ownership rights are being conferred by author of Will after Mohan Lal, land devolved upon his son Kali Charan who executed Will in favour of appellant on 7.6.1976. This was a chain of succession proved before Court below but it has erred in law in not appreciating the same, correctly. He further pointed out that three witnesses, namely, appellant-Subodh Kumar (PW-1), Sudama Kumar (PW-2)-brother of appellant, and Pradeep Kumar Sharma, a Routine Grade Clerk in Revenue Record Room (PW-3) had proved relevant documents but same have been ignored or mis-appreciated or not appreciated properly by Court below. 16. Learned Senior Counsel contended that land in dispute was not ‘Nazul’ since Ram Sukh Das was neither an absconder nor waged war against the then Government nor owner of disputed land died issue-less, so as to result in vesting of land with Government. Documentary evidence were also there to show that disputed land belong to Ramsukh Das and his successors and in absence of any otherwise material on record, Court below has erred in law in answering issue-1 regarding title of plaintiff, against him. 17. On the contrary learned Standing Counsel contended that land in dispute is owned by State Government and being a ‘Nazul land’, question of its title and possession with appellant did not arise. Suit was nothing but an effort to grab State’s land on the basis of certain bogus documents. 18. From rival submissions points for determination which have arisen in this appeal and need be adjudicated by this Court, are : i. Whether land in dispute is a ‘Nazul’? ii. Suit was nothing but an effort to grab State’s land on the basis of certain bogus documents. 18. From rival submissions points for determination which have arisen in this appeal and need be adjudicated by this Court, are : i. Whether land in dispute is a ‘Nazul’? ii. Whether Court below was justified in holding that plaintiff-appellant could not prove title and right to get possession over disputed land by adducing credible evidence? iii. Whether Sections 182/188 of U.P. Tenancy Act, 1939 (hereinafter referred to as ‘Act, 1939’) have any application in case in hand? iv. Whether appellant is owner of disputed land being a ‘Zamindar’ or was hereditary tenant and matured his right as ‘owner’ on property in dispute with promulgation of subsequent statutes? 19. The historical facts before independence as are evident from the published books are that up to the beginning of 19th century East India Company had its authority only on Varanasi Division and Allahabad Fort. The alleged ceded districts consisted of Azamgarh, Gorakhpur, Deoria, Basti, Allahabad, Fatehpur, Kanpur, Itawa, Mainpuri, Eta, Shahjahanpur, Bareilly, Badaun, Bijnour, Piliphit, came to be acquired from Nawab Wazir of Oudh in 1801. Certain other districts were acaquired under a treaty from Marathas in 1803 and these districts were Agra, Mathura, Bulandshahr, Ghaziabad, Merrut, Muzaffarnagar and Saharanpur as well as Bundelkhand districts of Banda and Hamirpur. The districts of Jhansi, Jalaun and Lalitpur were acquired by lapse forfeiture and treaty after 1840. The Province of Oudh was annexed in 1856. All the ceded and conquered districts were governed till 1835 by Bangal Regulations. Government of India Act, 1832 provided for establishment of Presidency of Agra. In 1902, both Provinces, Agra and Oudh, were united in the name of United Province of Agra and Oudh. By the Government of India Act, 1935 the words ‘’Agra and Oudh’ were omitted and ‘’United Province’ were retained. The title ‘’United Province’ was changed to ‘’U.P.’ on January 24, 1950. 20. It was own case pleaded by the appellant that Ramsukh Das, his predecessor, held land as Maafi Dawam (Revenue Free Grantee). He did not claim that his predecessor in interest was a ‘Zamindar’ or proprietor of land in dispute. Even with respect to the factum that his predecessor was a ‘Revenue Free Grantee’, i.e. ‘Mafi Dawam’, no evidence whatsoever has been placed before Court and despite our request also nothing has been shown to us. He did not claim that his predecessor in interest was a ‘Zamindar’ or proprietor of land in dispute. Even with respect to the factum that his predecessor was a ‘Revenue Free Grantee’, i.e. ‘Mafi Dawam’, no evidence whatsoever has been placed before Court and despite our request also nothing has been shown to us. In Mughal period, the grants used to be made by Farmans or Parwanas i.e. a written document. Even if an old document was not available, it was incumbent upon plaintiff to show any subsequent material or recognition by Britishers about rights and status of plaintiff’s predecessors in respect to land in dispute. 21. The revenue documents placed on record show mention of name of Ram Sukh Das as ‘Maafi Dawam’ in respect to land bearing gata No. 980. Simultaneously it also mention Government. Maafi Dawam also means a perpetual grant. The document on paper book at page 156 is in respect to taking of certain land bearing No. 1345 owned by Jamna Prasad, Lala Ganga Sahai, sons of Ramsukh Das Kanehri on Rs. 12/- per annum in March, 1978 for the purpose of women hospital in Bulanshahar. It has nothing to do with the land in dispute and at least nothing is available on record to correlate the two. It is true that in 1862 Ramsukh Das executed a ‘Will’ and sent letter to Collector but that by itself would not show that he was owner of land in dispute, particularly when it is admitted case of plaintiff that he was a ‘Grantee’ meaning thereby certain rights were conferred upon Ramsukh Das by another authority or person having title over the land in question. On what terms the lease i.e. ‘Mafi Dawam’ was granted, or it reverted to owner i.e. the then Government for the purpose of construction of jail cannot be ascertained. 22. In any case onus lay upon plaintiff to prove this fact but in absence of any material, we find no reason to record a finding of reversal to the findings of fact recorded by Court below. 23. 22. In any case onus lay upon plaintiff to prove this fact but in absence of any material, we find no reason to record a finding of reversal to the findings of fact recorded by Court below. 23. Now so far as reliance is placed on Sections 182 and 188 of the U.P. Act, 1939, here we find that plaintiff or his predecessors were not ‘Tenant’ within the meaning of Section 3 (23) of U.P. Act, 1939, therefore, benefits conferred upon the “tenants of the land” under U.P. Act, 1939 cannot be extended to plaintiff or his predecessors in question. In this regard we find that initially North Western Provinces Tenancy Act, 1901 (hereinafter referred to as ‘NWPT Act, 1901’) was enacted so as to confer certain benefits upon agricultural tenants i.e. those who let out or hold land for agricultural purposes. The term “Land Holder” and “Sub-tenant” were defined in Section 4 (5) and (7) which read as under : 4 (5) “Land Holder” means the person to whom, and “tenant” the person by whom rent is, or but for a contract, express or implied, would be payable; and “tenant” includes a thekedar, but does not include a mortgagee of proprietary rights, or a rent-free grantee; 4 (7) “Sub-tennt” means a tenant who holds land from a person possessing therein only the interest of a tenant, other than a permanent tenure-holder, or a thekedar; (emphasis added) 24. The ‘Rent Free Grantee’ was excluded from the term “Land Holder” or “Tenant”. 25. Again in Agra Tenancy Act, 1926 the term “Land Holder” and “Tenant” was defined in Section 3 (6) which reads as under : 3 (6) “land-holder” means the person to whom, and “tenant” the person by whom, rent is, or but for a contract, express or implied would be payable; “tenant” includes as grove-holder, but does not include a mortgagee of proprietary rights, a rent-free grantee or, save as otherwise ex-pressly provided by this Act, a thekedar; and “landlord” means the proprietor of mahal or of a share of specific plot therein. (emphasis added) 26. (emphasis added) 26. Continuing with the same terminology, the term ‘Tenant’ was defined in Section 3 (23) of U.P. Act, 1939 as under : “3 (23) “tenant” means the person by whom rent is, or but for a contract, express or implied, would be payable and, except when the contrary intention appears, includes a sub-tenant, but does not include a mortgagee of proprietary or under-proprietary rights, a grove-holder, a rent-free grantee, a grantee at a favourable rate of rent or except as otherwise expressly provided by this Act, an under proprietor, a permanent lessee or a thekedar;” 27. Moreover, land in question was already in use as District jail which according to own pleading of plaintiff was constructed in 1835. The “land”, therefore, ceased to be used for agricultural purposes and could not have been governed by U.P. Act, 1939 and in that view of the matter question of application of Section 182 and 188 would not arise. Therefore, questions 2, 3 and 4 are answered against appellant. 28. Now coming to question 1, we find that though the case set up by respondents is that disputed land is ‘nazul’ but in this regard also no clear evidence has come on record. It is the admitted case of both the parties that a jail building was constructed long back in 1835 on the land in dispute and since then land in question has been shown as belong to Government. In absence of anything to show that plaintiff was owner of land in dispute, and in the absence of any claim of anyone else ownership on land in question, and also considering the fact that land was/is being used by Government for more than one and a half century and is shown as Government land in ‘Kari Settlement’ and ‘Philips Settlement’, even if it is not a nazul in the meaning of ‘Nazul’ under “Nazul Manual” still is a land owned by defendant-State Government by virtue of continuous possession for more than 150 years and in view of Section 110 of Evidence Act, 1872, on account of admitted possession of State Government and its continuance over land in question. Thus we find no reason but to hold that State Government is owner of land in question by continuous possession and in absence of any other better title shown by anyone including appellant. Question-1, therefore, is answered accordingly. 29. Thus we find no reason but to hold that State Government is owner of land in question by continuous possession and in absence of any other better title shown by anyone including appellant. Question-1, therefore, is answered accordingly. 29. In view of the fact that the questions aforesaid have been answered against plaintiff-appellant we find no merit in the appeal. Dismissed with costs throughout.