B. L Yadav, J. - (1.) THIS is plaintiff's second appeal under section 100 of the Code of Civil Procedure (for short Code) in a suit for demolition of constructions and for a direction to Che defendants to bring the land in dispute to its original position, The relief for possession was also sought in alternative
(2.) THE suit was filed with the allegation that the plaintiff was old resident of the village and has got his house and Sahan. THE land in dispute was marked with letters ABCD in the plaint map. THE defendants without any authority raised some construction on the land of the plaintiff hence the necessity to institute the suit arose. The suit was contested by the defendant respondents denying the plaint allegations and stating that plaintiff was not owner of the land in dispute. The land in dispute has been parti and banjar since settlement year of 1880 and 81 and after the enforcement of UP ZA and LR Act 1950 (for short Act) it has vested in the Gaon Sabha in accordance with the provisions of section 117 and other similar provisions of the Act. The Gaon Sabha settled the land in dispute with the defendants by a resolution and granted a lease dated 22-2-1972 and the defendants have raised constructions over the same since then Requisite lease was also granted by the Gaon Sabha and the same has not been cancelled after following the procedure contemplated under section 198 of the Act Plaintiff has no right for the relief claimed particularly when the Gaon Sabha was not made party Trial court decreed the suit, lower appellate court allowed the appeal and dismissed the suit, hence second appeal has been filed.
(3.) SRI V. C. Mishra, learned counsel for the appellant urged that the extracts of Khatauni 1288 F has been erroneously rejected just on the ground that patwari has not issued necessary (certificate and that Vakil Commissioner's report being a substantive evidence has not been considered as such by the lower appellate court and even the objections of the defendants against the report of the Commissioner were rejected. Sri S. N. Srivastava learned) counsel for the respondents on the other hand urged that the extracts of Khatauni 1288 F filed by the plaintiff does not bear the certificate of Patwari that it was a correct copy, the procedure to issue the extracts of khatauni was not followed nor it was a correct copy and the extracts of khatauni 1288 F has correctly been rejected. Vakil Commissioner's report was not ;a substantive evidence unless he was examined in court or the parties consented for the same in view of the provisions of Order 26 (twenty six) Rule 10 (Ten) of the Code. It is open to the Court to take the report into consideration after objection against it has been disposed of in order to assess the substantive evidence produced by the parties in the case. The land in dispute was settled with the defendants on the basis of lease deed dated' 22-2-1992 granted by the Gaon Sabha on payment of Rs 260/- as premium and that lease deed has not been cancelled by making an application by the plaintiff under section 198 (4) of the Act. The Civil Court has no jurisdiction to cancel the lease granted by the Gaon Sabha The plaintiff has no right or title over the land in dispute. The suit was liable to be dismissed. No substantial question of law was involved and the second appeal is liable to be dismissed. Reliance was placed on Shimilesh Kumar v. Gaon Sabha Uskar Ghazipur, 1977 Alld. 360 FB.;