Tarun Agarwala, J. - (1.) THE plaintiff filed a suit far demolition of the construction raised by the defendant on the plot in question and also prayed for possession and for a permanent injunction restraining the defendants from interfering in the possession of THE plaintiff over the plot in dispute. THE plaintiff alleged that they had purchased the plot from the respondent Nos. 4 to 7 vide a registered sale-deed 20.7 07 and that the defendant Nos. 1, 2 and 3 forcibly occupied the premises and placed three chapper on the land in question.
(2.) THE defendants resisted the suit and submitted that they had been in possess ion of the plot from the lime of their ancestors and that the construction on the plot is not a new one and that it was in existence since the lime of their ancestors. THE defendants further submitted that the disputed land was excluded by them from the scheme of consolidation before the Consolidation Authority and that the plot now assumed the character of an abadi. THE defend ant further submitted that the defendant Nos. 4 to 7 had never been in possession and had no right to execute the sale-deed in favour of the plaintiff. THE defend ant further contended that they are the members of THE Scheduled Tribe, and therefore, the land was deemed to be settled with them under Section 123(2) of the U.P. Z.A and L.R Act THE defendants, in the alternative, further pleaded that THEy had perfected their rights by adverse means. On the basis of The pleadings, the trial Court framed various issues and issue No. 5 was, whether the defendants were entitled to the benefit of The UP Act No. 34 of 1974 amending Section 123 of the UP Z.A. SLR. Act The trial Court, after considering the evidence and The pleadings as well as the submissions made by The parties decreed the suit and a mandatory injunction was issued directing the defendants to re move the construction from the plot in question and injuncted the defendants restraining them from interfering in the possession of the plaintiff over The land in question. The trial Court found that the defendants had not produced any evidence to show that they were in possession of the plot prior to 15.3.1974, and therefore, held that the defendants were not entitled to the benefit of the U.P. Amendment Act No. 34 of 1974 amending Section 123(2) of the U.P.Z.A. and L.R. Act. The defend ants, being aggrieved by the decree of the suit, filed an appeal. The lower appellate Court after reappraising the evidence, dismissed the appeal again holding that no proof was filed by the defendants to show that they had raised the constructions prior to the enforcement of The UP. Act No. 34 of 1974. The lower appellate Court further found that the benefit of Section 9 of the U.P.Z.A and L.R. Act could not be extended To the defendant since they failed to prove that they were in continuous possession prior to the abolition of the Zamindari The lower appellate Court also held that no proof had been submitted by the defendants that They were Scheduled Caste or Scheduled Tribe, and therefore, Section 122-C(3) was not applicable and consequently, the defendants were not covered under Section 123 and were not entitled to any benefit under Section 123(2) of the Act.
(3.) THE defendants, being aggrieved have filed the present second appeal which was admitted on the following substantial question of law, namely: "A Whether rights conferred under Section123of the U.P. Zamindari Abolition and Land Reforms Act 1950 was available to the appellant and that the appellant was entitled for protection?" It may be stated here that the suit was filed in the year 1977 and the judgment was delivered by the trial Court on 31 10 1983. The defendants filed an appeal which was decided on 24.5.91. The second appeal was filed in the year 1991 which is now been disposed of in the year 2007.;