Mithan Lal, J. - (1.) These two second appeals have been heard together because a common question of law is involved in both the cases. Second Appeal No. 3698 of 1960 has been filed by the plaintiff. He alleged that former Omkar Nath Singh sold the plot in question to him on 2nd December 1946 and since then the plaintiff has remained in possession and has constructed some tin shed and a pucca gher with the door towards west. The gher was said to be situate within the Municipal limit of Shamli in plot No. 3056. It was stated in the plaint that under Sec. 117-A of the Zamindari Abolition and Land Reforms Act, the site of the gher which had vested in the State Government has been made to vest in the Municipal Board, Shamli. The Sub-Divisional Officer wrongly served a notice on the plaintiff under Rule 115-C of Z. A. and L. R. Rules on 14th May 1955 for re-moving the construction though the land should have been deemed to be settled with the plaintiff under Sec. 9 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter called the Act). On these allegations the plaintiff sought a relief for a declaration that he was the owner in possession of the Gher in dispute and the defendant had no right to get it demolished.
(2.) Both the defendants contested the suit by filing separate written statement. It was admitted to the Municipal Board that the land had vested in that body under Sec. 117-A of the Act. This was not denied to the State Government. The ground which was raised in the written statement was that the gher was not a building within the meaning of Sec. 9 of the Act and so its site could not be deemed to have been settled with the plaintiff and the plaintiff had no right to maintain the suit.
(3.) The trial court held that the plaintiff was the owner of the gher in dispute, that the constructions were old and that the plaintiff had a right to maintain the suit. The suit was accordingly decreed. The lower appellate court also came to the conclusion that the gher had been constructed in the year 1947 but there were no roofed construction inside the gher and so the gher could not be deemed to be a building within the meaning of Sec. 9 of the Act. On this finding, the decree of the trial court was reversed and the plaintiff's suit was dismissed. Aggrieved by the said finding, the plaintiff has come in appeal.;