- (1.) Heard learned counsel for the parties. This is plaintiff's second appeal arising out of O.S. No. 240 of 1974 which was dismissed on 28.4.1981 by VIIIth Additional Munsif, Allahabad. Against the said decree plaintiff-appellant filed Civil Appeal No. 359 of 1981 which was allowed in part by IInd Additional District Judge, Allahabad on 17.2.1984. The suit of the plaintiff for permanent prohibitory injunction in respect of land in triangular shape lying towards north of plaintiffs house was decreed. However, the suit in respect of large area of land lying towards west of plaintiffs house and the triangular piece of land was dismissed. Amin had been appointed in the suit who submitted a report on 12.1.1978 alongwith map. The map was numbered as paper No. 45A. Lower appellate court directed that the "suit of the plaintiff for permanent injunction is decreed in respect of the land construction etc., towards east of the line C.A.F. in the map 45A". Thereafter it was decreed that "the suit of the plaintiff for the land C.D.E.F. in the map 45A is dismissed". This appeal was admitted on 12.10.1984 on substantial question of law as framed in paragraphs I, II and V at pages 4 and 5 of the memorandum of appeal. The said questions of law are quoted below: (i) Whether the lower appellate court acted illegally in dismissing the plaintiff's suit in respect of the part of the land in dispute simply on the ground that the area of the plaintiffs house was lesser than the area of the land in dispute for the purposes of determination of appurtenant land within the meaning of Section 9 of U. P. Zamindari Abolition and Land Reforms Act? (ii) Whether the plaintiff has proved himself to the owner of the entire land in dispute being appurtenant land to his house within the meaning of Section 9 of the U. P. Z. A. and L. R. Act and the lower appellate court has misconstrued the meaning of the word appurtenant used under Section 9 of the said Act? (v) Whether the finding of the lower appellate court regarding defendants possession based on the Commissioner's report is vitiated by manifest error of law inasmuch as the Commissioner's report for want of cross-examination was Inadmissible in evidence? Question Nos. 1 and 2:
(2.) I do not find any error in the view taken by the lower appellate court to the effect that the land regarding which the suit has been dismissed, cannot be said to be appurtenant to the plaintiffs house. Firstly, this land is not just adjacent to the plaintiff's house while the triangular piece of land regarding which suit has been decreed is just adjacent to the plaintiff's house towards north. Secondly, under Section 9 of U. P. Z. A. and L. R. Act land may be settled only if it satisfies the following requirements: (i) It is appurtenant to the claimant's house. (ii) It is essential to be used for the beneficial enjoyment of the claimant's house. (iii) It is actually being used for the beneficial enjoyment of the claimant's house. (iv) It has got a reasonable ratio with the constructed portion which under no circumstances can be double the area of the constructed portion.
(3.) If a person has got a small house over an area of 100 or 200 square yards somewhere in a plot of 10 acres, he cannot claim the entire plot to have settled with him under Section 9 of the Act. From the Commissioner's map dated 12.1.1978 paper No. 45A, it is quite evident that the area of the land which has been held to be settled with plaintiff-appellant by the lower appellate court is itself slightly more than the area of the plaintiff's house. The area of the land C.D.E.F. regarding which the suit has been dismissed is about 7 to 8 times the area of the plaintiff's house. The plaintiff claimed that he used to rear and tether large number of the sheep and goats for business use. Even if this allegation is correct such use cannot be said to be essential for the beneficial use of the house for residential purposes.;