- (1.) SUNIL Ambwani, J. Heard Shri Manoj Misra, learned Counsel for the defendant-appellant Shri P. K. Misra appears for the plaintiff-respondents
(2.) THE defendant-appellant No. 2 died on 26. 7. 2006. THE right to sue survives on the remaining appellants, who are already on record as appellant Nos. 1/1 to 1/4 as well as appellant Nos. 3 and 4. THE substitution application No. 225409/06 is allowed. Let the record be made by the office of the prayer made by the appel lant in the array of parties. Shri Ranjeet Victor, the plaintiff-respondent No. 6 died on 31. 7. 2006 leav ing behind his heirs and representatives given in para 2 of the affidavit. Shri P. K. Misra, learned Counsel for the respondents has no objection to their substitution. He has filed vakalatnama on their behalf. The substitution application No. 225406/ 06 is allowed. The office will make a record in the array of parties. Shri C. J. Victor and others brought Original Suit No. 434 of 1963 in the Court of Munsif, Gorakhpur against Shri R. Banerjee and others for possession over the land in dispute with the allegations that their old house is situated in Plot No. 1181. They are owners of a piece of land bearing No. 1129 area 0. 80 dismals with which the defendants have no concern. The defendants' house is situate in Plot No. 1171 situate towards east of Plot No. 1129. The plaintiffs have given some land to Shri Ram Yadav and on the remaining and they are in possession in which there are some trees and a bamboo grove planted by them. They also have a well in the disputed plot. The defendants without any authority started taking possession of the1 'khajoot' trees on 21. 7. 1963 and started raising a wall giving rise to the cause of action to file the suit.
(3.) THE defendant-appellant Nos. 1 to 4 filed the written statement alleging that the disputed trees are situate in Plot No. 1172 area 0. 33 dismals owned by the defendants. After the plaintiffs sold their land to Shri Ram Yadav, they were not left with any land between Plot Nos. 1129 and 1172. THE subject land was settled with the defendants under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 and that the suit is barred by Section 49 of the Consoli dation of Holdings Act, 1953. THE defendants further alleged that the Civil Court has no jurisdiction to decide the suit and that the suit was filed beyond the period of limitation. The trial Court framed 12 issues. For the purposes of second appeal only issue Nos. 1 to 7 are relevant. These issues are as follows: " (1) Whether the land in suit lies in plot No. 1129? (2) Whether the land in suit is the Sahan land of the defendant? (3) Whether trees in suit were planted by the defendants? (4) Whether the plaintiffs are the owners of the land in suit? (5) Whether the trees in suit lies in plot No. 1129? (6) Whether the plaintiffs are owner of the trees in suit? (7) Whether the land and trees in suit shall be deemed to have been settled with the defendants under Section 9 of the UPZA and LR Act?";