- (1.) Heard learned standing counsel for the appellant and Sri L.P. Tiwari, learned counsel for the plaintiff respondent no.1. Respondent no.2 is proforma party. This is defendants' Second appeal arising out of O.S. no.280 of 1980 instituted by plaintiff respondent no.1 for permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiffs over the land in dispute. The suit was decreed on 11.3.1983 by Munsif III, Gorakhpur. Against the said decree defendants filed civil appeal no.165 of 1983. 7th A.D.J. Gorakhpur dismissed the appeal through judgment and decree dated 9.7.1991 hence this second appeal. This second appeal was admitted on 18.5.2009 on the following substantial questions of law: "1. Whether the suit filed by the plaintiff respondent is not maintainable in as much as same is barred by provision of Section 331 of the U.P.Z.A. & L.R. Act
(2.) Whether the suit filed by the plaintiff respondent is barred by time as the Notification under Section 20 of the Forest Act was not challenged in time and has become final
(3.) Whether the suit filed by the plaintiff respondent is also barred by provisions of Section 49 of the U.P.C.H. Act as the plots in question are under Consolidation proceedings." 2. The facts of the case as disclosed in the plaint are that a notification under Section 4 Forest Act was issued in 1954 declaring that large area of land included therein had been decided to constitute reserve forest. Land in dispute was part of that. Plaintiffs and several other persons filed objections claiming that they were Seerdars/Bhoomidhar of different plots of the land included in the said notification. Objections were rejected by Forest Settlement Officer on 15.2.1960. Against the order passed by Forest Settlement Officer appeal was filed by different objectors including plaintiff respondent no.1 which was allowed on 24.5.1961 by Additional Commissioner. However, inspite of that the land in dispute was malafidly included in the final notification under Section 20 of Forest Act dated 3.8.1966/15.2.1967. 3. In the notification under Section 4 of the Act plot numbers were not given. The total area mentioned was 440 acre and it was described by boundaries, however, both the parties admitted that plots in dispute were included therein. Certified copies of judgments of Forest Settlement Officer and Additional Commissioner are Exhibit 1 and 2. The plots in dispute are no.407 area 0.39 acres, plot no.418 area 19.22 acre and plot no.418 M area 8 acre. These plots are not mentioned in the judgment of Additional Commissioner dated 24.5.1961. However, in the said judgment it is mentioned that rest of the plots regarding which appeal had been filed had been released. The main dispute between the parties is regarding this observation in the judgment of additional Commissioner. According to the learned standing counsel appearing for the defendant appellant this observation is not of much value and plaintiff respondent should have filed the order (copy of order) through which plots in dispute were released. Learned counsel for plaintiff respondent has argued that as in the judgment of the appellate court/additional commissioner dated 24.5.1961 it has specifically been mentioned that plots now in dispute had been released and on that basis no decision was given in the plaintiffs appeal which also in respect of the plots now in dispute hence it stands conclusively proved that the plots now in dispute had been released and it is not necessary for the plaintiff to file copy of order of release and that after the decision of the appeal plaintiff did not make efforts to obtain and keep in record the copy of release order. It has further been argued that as the Forest Authorities admitted regarding release or at least did not deny the release before Additional Commissioner at that time hence it is not necessary to prove the order of the release by filing copy of the same and that after the decision of the appeal plaintiffs did not make efforts to obtain and keep in record the copy of release order.;