- (1.) MRS. Poonam Srivastav, J. 1. Heard Sri Sankatha Rai, learned counsel for the Defendant-appellants and Sri R. N. Singh Senior Advocate, assisted by Sri Rajeev Kumar Srivastava, counsels for the Plaintiff-respondents.
(2.) THIS is defendants' second appeal arising out of a decree dated 16. 4. 1982 passed by the District Judge, Mirzapur in Civil Appeal No. 186 of 1980 confirming the judgment and decree dated 27. 8. 1980 passed by the Ist Additional Munsif, Mirzapur in Suit No. 322 of 1979. The suit was instituted with the relief for perpetual injunction against the defendant-appellants restraining them from interfering with the physical possession over the land shown by Cha, Chha, Ga, Gha (hereinafter referred to as the disputed land) and also to restrain the appellants from raising any construction over the disputed land. The other reliefs were that in the event, it is found that any construction is raised over the disputed land, the same may be directed to be demolished and the plaintiffs be put in possession. The disputed property is situated in village Babura, Tappa 96, Pargana Kantit, District Mirzapur. Boundaries were given at the foot of the plaint. The plaintiffs stake their claims by pleadings that on 13. 10. 1970 they purchased the land in dispute from one Bankteshwar Dutt Dubey vide registered sale deed dated 13. 10. 1970 and since then they are owners in possession and the defendant-appellants have no claim or concern whatsoever. Further allegation was that on 15. 10. 1979 the plaintiffs sent a registered notice to the defendants but the notice was returned. The defendant- appellants once again tried to dispossess the plaintiffs on 22. 10. 79 and cause of action arose on the said date. The Defendant-appellant Mata Prasad Singh filed written statement denying the plaint allegation. The stand of the defendant-appellant in paragraph 3 of the additional plea was that Bankteshwar Dutt Dubey was neither owner of the disputed land nor he had any right to execute the sale deed. The plaintiffs are not in possession over the disputed land after the so called sale deed in their favour executed by Bankateshwar Dutt Dubey. The case of the defendant-appellants was that the entire disputed land was owned by one Raghav Prasad Singh and Dhaneshwar Singh. There was a mutual partition between them and the property in dispute came in the share of Raghav Prasad Singh who executed a registered sale deed on 19. 12. 1966 in favour of defendants and since then they are in possession. The defendants have constructed Mandai, Nad, Khoonta, Charni, Compost Pit, Mandavi and Madha and also installed Chaff Cutter Machine. The land is also used by them for spreading cow dung cakes and various other households work connected with agricultural purposes. The claim of the defendant-appellants was that Bankateshwar Dutt Dubey had no concern with the land. Raghav Prasad Singh constructed a house after it fell down on the disputed land. Initially it was Khandhar of Raghav Prasad Singh. The case set up by the plaintiffs that the defendant-appellants tried to take forcible possession was also denied. The defendant Kallu Singh also filed a separate written statement which forms part of the record. The trial court framed four issues which are as under: 1. Whether the plaintiffs are owner in possession of house shown by letter Ka, Kha, Ga, Gha ? 2. Whether the suit is under valued ? 3. Whether the court-fee paid is insufficient ? What relief plaintiffs is entitled. Oral as well as documentary evidence were led by both the parties. The trial court decreed the suit and findings of the trial court were confirmed by the lower appellate court. Both the judgments and decree have been challenged in the instant second appeal on a number of ground as well as several substantial questions of law were raised in the memo of appeal which are as under:- 1. Whether a zamindar of the village can be owner of the land in village abadi even after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act ? 2. Whether the plaintiffs or his vendor, Bankateshwar Dutt Deubey who was not owner of the land in dispute after the enforcement of U. P. Zamindari Abolition and Land Reforms Act in as much as they never submitted, pleaded and proved themselves to be owners of the land in dispute under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act? 3. Whether the courts below acted illegally and without jurisdiction in decreeing the plaintiffs' suit placing the burden of proof on the defendants to prove their title ? 4. Whether the courts below ignored the settled principles of law when the plaintiffs' suit for demolition and possession etc. , was filed irrespective of the fact that the defendants proved their title ?
(3.) WHETHER the plaintiffs' suit was barred by time ? Whether the land in dispute was identifiable on the spot ?;