Shishir Kumar, J. - (1.) HEARD learned Counsel for Appellant.
(2.) THIS is a Defendant's second appeal arising out a Suit No. 357 of 1983 (Ram Lochan v. Kewal and others ) decreed partly vide its judgment and order dated 7.2.2003. Appeal filed by Plaintiff -Respondent has been allowed. Hence, this appeal by Defendant. The facts arising out of present second appeal as stated in the plaint is that Plaintiff is the resident of Mauza Ratnavey Pargana Athrauliya, Tehsil Phoolpur, District Azamgarh. Arazai No. 977 which new number is 302, during consolidation has vested in the gaon sabha and on 14.9.1973, the said plot measuring about 52 kari, patta was granted in favour of Plaintiff for the purpsoes of using as abadi. Possession was given to Plaintiff. On the said plot there is a tree of Neem -Babool which is under the ownership of Plaintiff -Respondent. Towards east Plaintiff has constructed a marahi and started living there. Due to poverty he could not raise construction. It appears that though Defendant has got no concerned with the said property, Plaintiff wanted to raise certain construction, Defendant obstructed and has not permitted to raise construction then suit for relief claimed has been filed.
(3.) DEFENDANT filed written statement denying claim made in the plaint but he has admitted this fact partly that no construction has been made upon the land of Plaintiff -Respondent. In case, on the basis of Commissioner's report, from 15 ka -2 about three hand south towards west it is the property of the Defendant. Defendant No. 2 has also filed his written statement and denied claim and has submitted that Plaintiff and gaon sabha has got no concerned with the property and Plaintiff has not submitted map and has not submitted that Arazi No. 977 measuring 52 kari cannot be ascertained without survey and he is in possession of the property and this land was given by zamindars. From that date he is in possession of the property in dispute before the date of vesting and under Section 9 of the U.P. Zamindari and Land Reforms Act, property has been settled under Section 9 and there is a marahi and house of Defendant No. 1 which is standing from five to six years. According to him, no further construction has been made.;