DEOKI NANDAN, J. - (1.) THIS is plaintiff's second appeal in a suit for injunction and in the alternative for possession in respect of a plot of land denoted by letters A.B.C.D. on the plaint map. The plaintiff's case was that he was a co-sharer in the zamindari rights in respect of the land used to have a Kolhar thereon, that the building of the said Kohar fell down in the year 1955-56 and the defendant-interfered with the plaintiff's possession over the land and prevented him from reconstructing buildings thereon. An earlier suit being suit no. 77 of 1957 filed by Mehdi Hasan plaintiff's uncle and co-sharers was decreed by the trial Court but was dis­missed on appeal, according to the plaintiff, on a preliminary ground. The suit giving rise to the present second appeal was filed soon thereafter
(2.) THE defendants traversed the plaintiff's case. The following were the issues on which the parties went to trial;- 1. Whether there was a Kolhare building on the land in suit shown by letters A.B.C.D. on the Commissioner's map paper no. 25A-2 and the vacant land was appurtenant to it on the date of abolition of zamindari in the State of U. P.? If so was the land in suit settled with plaintiff under Section 9 of Zamindari Abolition and Land Reforms Act.? 2. Whether the suit is barred by time ? 3. Whether the suit is barred by Section 11 Civil Procedure Code as alleged ? 4. Whether the suit is barred by principle of estoppel ? 5. To what relief, if any, is the plaintiff entitled ?" On the third issue, which was taken up first by the trial Court, it held that the suit was not hit by Section 11 of the Code of Civil Procedure. Issues Nos. 1 and 2 were taken up together. The trial Court disbelieved the plaintiff's case and held that the plaintiff was not in possession of any building on the land on the abolition of zamindari and that, therefore, it could not be said that the land was settled with him under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. On issue no. 2 it found that the plaintiff had not been in possession over the land with­in 12 years prior to the date of the institution of the suit and it was accordingly barred by limitation. Issue no. 4 was answered in the negative, and in view of its finding on issues nos. 1,2 and 3, the suit was dismissed by the trial Court.
(3.) ON plaintiff's appeal, the lower appellate Court observed that the present suit was a vain attempt to claim the land which could not succeed in the earlier suit, and although "technically the plea of res-judicata do not apply "the claim is substantially the same which the plaintiff's uncle could not maintain in the earlier suit. This was followed up by the lower appellate Court by the following observations." The plaintiff as in the suit did not detail the Sikmi plots of which he was co-sharer, proprietor before the aboli­tion of zamindari. The partition papers, namely, partition Khasra and the map on the record can be of no help because Sikmi numbers of the land in question have not been plotted. The plaintiff and his co-sharers are shown to be the owners of certain Sikmi plots but the same have not been located and the identification of the land in suit with its Sikmi numbers have not been established. The case cannot, therefore, be decided upon conjectures and supposition that the land in suit was indentical with the Sikmi numbers denoted in the Patti Akher Ali belonged to the plaintiff and his co-sharers. "I have not been able to make any sense out of the said observations of the lower appellate Court. A case has to be decided by the Court on the pleadings of the parties and on the evidence led by them. Here the decision appears to be based more on absence of evidence which the Court thought was the only evidence on which a case of the present kind could be established.;