S. Malik, J. - (1.) THIS is a Defendants' second appeal against the judgment dt. 27 -2 -1965 of the 1st Addl. Civil Judge, Nainital, allowing the Plaintiffs' appeal and decreeing the Plaintiffs' suit for a declaration that the land in suit was a legal extension made by the Plaintiffs in accordance with the provisions of the Kumaun Nayabad and Waste Lands Act, 1948 (Act No. XXXII of 1948) (hereinafter referred to as the Act).
(2.) THE suit was filed by Prem Singh for a declaration that the land described in the plaint and shown in red in the Amin's map is a genuine extension of the Plaintiffs in accordance with the provisions of the Act. Prem Singh died during the pendency of the suit and his five sons, daughter and widow continued the suit thereafter. In Kumaun a cultivator is allowed to extend his cultivated land by including land which has not yet been brought under the plough and lying contiguous to his agricultural land provided the land included is within the traditional boundary as defined in the Act. According to the Plaintiffs, the father of Defendant -Appellants Nos. 1 to 7 wrongly reported against the said extension legally made by Prem Singh and on the said report the Asstt. Collector held the extension in question to have been illegal and directed Prem Singh to vacate the same. Prem Singh admittedly went up in appeal against the order passed by the Asstt. Collector and his appeal was dismissed. Thereafter Prem Singh filed a Second Appeal before the Commr. and the same also was dismissed and thereafter the suit in question was filed. The State of UP was also made a party through the Dy. Commr. Almora but it appears that the State of UP is no longer interested in this case and therefore, has not challenged the judgment passed by the lower appellate court and has been impleaded as a proforma Respondent in this Court. The contesting Defendants -Appellants pleaded that the revenue courts rightly held the extension to be illegal.
(3.) THE questions which arise in this case are whether the extension in question is contiguous to the agricultural plots of the Plaintiffs -Respondents and within the traditional boundary of the village to which the Plaintiffs belong. It may be mentioned that the Plaintiffs are residents of village Dhanyari, while the Defendant -Appellants are residents of village Hatela. By concurrent findings of fact the courts below have held that the extension in question is situate in village Dhanyari and contiguous to the agricultural plot of the Plaintiffs.;