S.K.Phaujdar - (1.) THIS is an appeal by the defendant-appellants against the judgment and decree dated 8.8.75 passed by the Civil Judge, Jhansi, reversing a decree of dismissal of the suit of the plaintiff-respondent.
(2.) THE suit was filed for a declaration of title on the suit-property and for recovery of possession. It was stated that the suit-property, measuring 30 cubits x 20 cubits, was a Bera (fenced area) of the plaintiff adjacent north to his house. It was stated that the plaintiff's family was in possession of the same as owner since the time of his forefathers. It was further stated that the door of the house of the plaintiff opened on this Bera and the plaintiff has been using this Bera for stacking cowdung, by tethering the cattle and the like. THE plaintiff had a babul tree on this bera. This land was fenced by dried shrubs on four sides and the plaintiff had kept 10,000 pieces of bricks there. THE plaintiff further stated in the plaint that the defendants had no concern with the land and their house was far from this land but with an ill motive, they damaged the fence and forcibly started digging a plinth on the land in question and a dispute arose between the parties. THEre had been a proceeding under Section 145, Cr. P.C. as a result of this dispute and possession of the defendant on the suit land was upheld. Hence the suit. The present appellant-defendants came up with a case denying the averments in the plaint and they denied further that the plaintiff was owner or occupier of the land in question. It was categorically stated by the defendants that the door of the house of the plaintiff opened towards the south and there was no door opening to the north on the bera land. The dispute which gave rise to the Section 145, Cr. P.C. proceeding was initiated as the plaintiff wanted to open a door towards the north. It was further indicated in the written statement that half of the land in suit was in possession of the defendant while the rest half belonged to the Gaon Sabha. The plaintiff kept no bricks on the land in question. The court of first instance had framed two issues ; (1) whether the plaintiff was the owner of the suit-property and (2) whether he was entitled to any ' relief. The trial court decided both the issues against the plaintiff and dismissed the suit. The first appellate court, however, held that the suit-property was the BERA of the plaintiff as it was a land appurtenant to his house and, under Section 9 of the U. P. Z. A. & L. R. Act, this land be deemed to have been settled with the plaintiff.
(3.) THIS finding of the first appellate court has been challenged in this appeal and it was contended that the provisions of Section 9 of the U. P. Z. A. & L. R. Act were wrongly applied as there was no finding of the lower appellate court regarding possession on the date of vesting of the land. The order was also challenged on the ground that there was no finding as regards possession of the plaintiff or the defendants, both of whom laid counter claims on the land in question. It was contended further that the plaintiff had a burden of proof, within the purview of Section 9 of the U.P.Z.A. & L. R. Act and on his failure to prove the necessary facts, the court below could not have decreed the suit in his favour. Reliance was placed on a decision of the Allahabad High Court reported in AIR 1976 All 121. It was held in paragraph 20 of the said judgment, as reported, that Section 9 of the U. P. Z. A. & L. R. Act was an exception to the general rule and the burden lay on the defendants to establish that the land was such to which the provisions of Section 9 would apply. In that case, a plea of settlement under Section 9 of the Act was raised by the defendants. The learned counsel further challenged the finding of the first appellate court on the ground that mere user by a person may not make a land appurtenant to his house, as required under Section 9 of the U. P. Z. A. & L. R. Act. He argued that the clause of "appurtenant to building" was not defined in the U. P. Z. A. & L. R. Act and the Supreme Court had explained the clause in the case of Maharaj Singh, AIR 1976 SC 2602. In fact, this case arose out of the case reported in AIR 1976 All 121, already referred to in the last paragraph. The Supreme Court explained the clause "appurtenant to building" and stated that the touch-stone of appurtenance is dependence of the building on what appertains to it, for its use as a building. The learned counsel submitted that the first appellate court had not gone to this aspect at all and had recorded no finding that the use of the house of the plaintiff was in any way dependent on the use of the Bera land in question.;