- (1.) THIS second appeal, preferred under Section 100 of the Code of Civil Proce dure, 1908 (hereinafter referred as C. P. C.), is directed against the judgment and decree dated 2/-08-1979, passed in Civil Appeal No. 72 of 1979, by lower appellate court (Civil Judge, Nainital), whereby the judgment and decree dated 14-05-1979, passed in Original Suit No. 45 of 1976, by Munsif, Kashipur, dis missing the suit, is affirmed: (Earlier Tehsil Kashipur was part of district Nainital ).
(2.) HEARD learned counsel for the parties and perused the papers on record. Factual matrix of the case is that suit No. 45 of 1976 was filed by plain tiff (appellant) in the court of Munsif, Kashipur, with the pleading that he cul tivating land in suit (plot Nos. 95-A, 96, 9/-B, 98, 99, 100, 101-A, 102-A, 103, 104,105,106-A, 93/111 and 91/2 situ ated in Village Bichapuri, Bazpur) in his own rights for 18 years and he had be come Bhumidhar of the plots. It is fur ther pleaded by the plaintiff that suit NO. 77 of the year 1969-70 which was ear lier filed by him in the court of the As sistant Collector, Kashipur, under Section 229-B of the U. P Zamindari Abolition and Land Reforms' Act, 1950, was de creed in his favour vide order dated 09-03-1970. As such, the plaintiff was de clared Bhumidhar in respect of the plots in suit. It is further pleaded by the plain tiff that after depositing 20 times of land revenue he became Bhumidhar of the plots in question and was issued a Bhumidhari certificate on 21- 10-1970. However, plaint case is that in the garb of proceedings under the U. P Imposition of Ceiling on Land Holdings Act, 1960, against one Cyan Singh, in August 1975, officials of the defendant-State have shown possession taken of land in question which was shown as 'surplus land' of Cyan Singh. With these plead ings, the plaintiff filed suit for injunction, after serving a notice under Section 80 of the C. P. C. , on the defendant. The defendant (State) contested the suit and filed its written statement in which it is pleaded that Shamsher Singh (plaintiff) is not the tenure holder of the plots in suit, it is also pleaded by the defendant that the plaintiff fraudu lently got declared himself Sirdar and it has no affect on the proceedings under the U. P Imposition of Ceiling on Land Holdings Act, 1960. It is further alleged by the defendant State that possession of plots in suit was taken by it on 22
(3.) 05-1975. Challenging the validity of notice under Section 80 of C. P. C. , the defendant further challenged the jurisdic tion of the civil court to try this suit. On the basis of the pleadings of the parties, the trial court framed follow ing issues : 1. Whether the plaintiff is the ten ant (tenure holder) in possession of the plots in suit, and was he in possession thereof for last 18 years ? 2. Whether the plots in suit have already been vested in the State as a surplus land of one Cyan Singh, a third person to this suit? 3. Whether the suit is bad for want of a valid notice under Section 80 of C. P. C. ? 4. To what relief, if any, the plain tiff is entitled?;