Deoki Nandan, J. - (1.) This is a plaintiffs second appeal in a suit for demolition of certain constructions made by the defendants on a plot of land No. 121 having an area 0.34 acres of village Kataria, Pargana Kant, Tahsil Sadar, district Shahjahanpur. Possession and prohibitory injunction restraining the defendants from making any further construction in future were also claimed.
(2.) The trial court decreed the suit but the lower appellate court has dismissed it on the view that it was barred by Section 49 of the U. P. Consolidation of Holdings Act.
(3.) According to the plaintiffs case set out in the plaint, they were the bhumidhars in possession of the land. The land was demarcated as Abadi during the consolidation proceedings and they became owners thereof The defendants Nos. 1,2, and 5 alone defended the suit. It proceeded ex parte against defendants Nos. 3, 4 and 6. The defendants case was that the land had been reserved for Abadi in the consolidation proceedings and thus belonged to the Gaon Sabha, and that the contesting defendants had been allotted portions of it by the Gaon Sabha on 16th Jan. 1966 in accordance with the procedure prescribed by law and that they had constructed boundary walls and dug foundations for construction of their houses thereon. Defendants Nos. 3 and 4 were said to be unnecessary parties. Defendant No. 4 was even said to be in collusion with the plaintiffs. The bar of Section 49 of the U. P. Consolidation of Holdings Act was also raised. The trial court framed as many as 6 issues of which the material issues were the first two, namely, (1) Whether the plaintiffs are owners of the land in dispute; and (2) Whether the suit is barred by Section 49 of the U. P. Consolidation of Holdings Act. The trial court found in favour of the plaintiffs on both the issues and decreed the suit accordingly. The lower appellate court did not go into the question of the plaintiffs title to the land. It held that the civil court had jurisdiction to entertain the suit despite the provisions of S. 331 of the U. P. Zamindari Abolition and Land Reforms Act, but on an interpretation of Section 49 of the U. P. Consolidation of Holdings Act, it came to the conclusion that the suit was barred thereby and in the result allowed the appeal and dismissed the suit.;