B.Dayal, J. - (1.)This is a plaintiffs' second appeal, who filed a suit for recovery of possession of a dilapidated Chhaoni over a portion of which the defendants had made constructions. There were several defences to the suit but in this appeal only three points survive, (1) whether the suit was barred by Sections 6 and 9 of the U.P.Z.A. and L.R. Act, (II) whether under the village Abadi Act, 1947, the defendant's house must be deemed to have been constructed with the consent of the plaintiffs and (III), whether the defendant's construction was upon the land which the plaintiffs claimed as the site of their dilapidated Chhaoni.
(2.)I have heard learned counsel for the parties and I find that the lower appellate court has gone wrong on all the points. There is a clear statement of the plaintiffs and the defendants own witness Kaluram that the construction of the defendants was upon the site of the old Chhaoni of the plaintiffs. Another witness of the defendants has clearly admitted that the plaintiff constructed a new chhaoni about six years ago and their old chhaoni had fallen down. On these admissions, it was wrong on the part of the lower appellate court to hold that there was no evidence in favour of the plaintiffs that their old chhaoni had fallen down. The court below has not considered any evidence or statement of the witnesses in its judgment and has merely stated the conclusion that the plaintiffs had failed to prove that they had made another chhaoni. The judgment of the court below not having considered all the evidence it became necessary for me to go into the evidence. I find that the finding is wrong.
(3.)The next point for consideration is the applicability of Sections 6 and 9 of the U.P.Z.A. and L.R. Act. Admittedly, sites of building are deemed to be settled with the owners of the buildings under Sec. 9 of the said Act. The question for consideration is whether this site of the old chhaoni can be deemed to have been settled with the plaintiffs. The contention of learned counsel for the respondents is that on the date of vesting this chhaoni was in a dilapidated condition and had fallen down completely. It, therefore, cannot be deemed to be the site of the building. I am unable to agree with this contention. In villages where kachcha houses are constructed, they very often fall down in rains and it cannot be said that as long as the owner of the house has an intention to rebuild the house that house does not exist and the land is merely an abadi site or vacant land. The site of such a dilapidated house must be deemed settled with the owner of the house. The defendant's father having made construction without any right and without the permission of the owner of the site, was merely a trespasser and the defendants cannot take advantage of Sec. 9 of the Act.