Sibghat Ullah Khan, J. - (1.) HEARD learned counsel for the appellant at the admission stage.
(2.) THIS is plaintiff's second appeal arising out of O.S. No.720 of 2003 which was dismissed on 29.11.2007 by V Additional Civil Judge, Junior Division, Mirzapur. Against the said decree plaintiff filed Civil Appeal No.1 of 2008 which was dismissed on 04.09.2009 by District Judge, Mirzapur, hence this second appeal. The only contesting defendant in the suit was Gram Panchayat through Pradhan/ Chairman, Land Management Committee of the village concerned. Defendants No.2 & 3 are real brothers of plaintiff and were impleaded as proforma respondents. Plot number of property in dispute is 65 (old Plot No.535) area 1 biswa(0.013 hectares). In the revenue records the land in dispute is entered as banjar. During consolidation also it continued to be recorded as such. Plaintiff had not filed any objection in the consolidation proceedings. Plaintiff claimed that he was having a room (baithak) in a corner of the land in dispute hence the remaining open land settled with him under Section 9 of U.P.Z.A. & L.R. Act. In the plaint map the open land has been shown to be more than four times of the constructed portion. Pradhan/ Gram Samaj hundred percent supported the case of the plaintiff. In this scenario the courts below rightly held that plaintiff and Pradhan were in collusion and the only purpose of the suit was to create evidence. It was alleged that Pradhan and other persons wanted to dispossess plaintiff however Pradhan in the written statement completely supported the case of the plaintiff that land in dispute had settled with him. However it was pleaded by the Pradhan that the suit was barred by Section 49 of U.P. Consolidation of Holdings Act. In spite of it in Para -6 of the written statement it was stated that Gaon Sabha was never in possession over the land in dispute.
(3.) BOTH the courts below held that plaintiff could not prove that he was in possession since before Zamindari Abolition and that there was material contradiction in the oral evidence of the plaintiff's witnesses. It was also found that total area was 0.076 hectares and entered as banjaras well as abadiin the revenue records. However prior to consolidation old Plot No.535 was entered as banjaronly. Accordingly it was proved that at the time of Zamindari Abolition there was no structure over any part of the land/ plot in dispute hence there was no question of settlement under Section 9 of U.P.Z.A. & L.R. Act.;