S.D.Agarwal, J. - (1.) This is a plaintiff's second appeal arising out of a suit filed for an injunction restraining the respondent No. 1 Gram Samaj and the State of U.P. from interfering with the possession of the building over the disputed land along with the trees. The suit proceed ex parte against the State of U.P. the suit was decreed by the trial court on 20th August 1959 with costs from the respondent no. 1 Against the said judgment an appeal was filed by the Gram Samaj and not by the State of U.P. against whom an ex parte decree has been passed. The lower appellate court allowed the appeal in part. The judgment and decree of the trial court was affirmed in so far as the relief for injunction in respect of the disputed trees was concerned, but the judgment and decree of the trial court was modified and it was made clear that the suit stood dismissed in so far as the tank and bhitas are concerned. The judgment of the lower appellate court is dated 4th October, 1967. Against the said judgment neither Grain Samaj nor the State of U.P. has filed appeal. As such, so far as the injunction for trees is concerned that became final. The plaintiffs have, however, filed the present appeal challenging the judgment of the lower appellate court by which it has refused to grant them the relief in regard to the tank and bhitas.
(2.) Learned counsel for the appellants has urged that on the finding that the tank and bhitas have been built by the predecessor-in-interest of the appellant on the tenancy land, the said tank: and bhitas could not vest in the respondents under section 6 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 and the view to the contrary taken by the lower appellate court is, thus, erroneous in law.
(3.) Shri R. P. Misra learned standing counsel appearing on behalf of the respondents had, however, urged that the view taken by the lower appellate court is correct. He has also further urged that, in fact, the suit was barred by Section 80, C. P. C. as well as by Section 106 of the U.P. Panchayat Raj Act, 1947, and in this view of the matter also the plaintiffs appeal cannot be allowed and the suit was liable to be dismissed.;