Poonam Srivastav, J. - (1.) -Heard learned counsel for the appellants and counsel for the respondents.
(2.) THIS is plaintiff's second appeal against the judgment and decree dated 18.11.1981, passed in Civil Appeal No. 323 of 1979, Rafi and others v. Israr and others setting aside the judgment and decree dated 24.9.1979 passed in Suit No. 47 of 1979, Israr and others v. Rafi and others. According to the plaintiffs, they claimed to be owner in possession of plot No. 14 having an area of 5 biswa situated in Village Miserpura, Tappa 96, Pargana Kantit, district Mirzapur since the time of their ancestors. They utilized the land for stocking cow dung cake and other articles. They also claimed that they had planted 4 mango trees, one berry tree and certain bamboo clumps. Claim of ownership was on the basis of possession since a very long time and after abolition of Zamindari the land stands settled in their favour under Sections 9 and 6 of U.P.Z.A. and L.R. Act. The Pradhan of Gaon Sabha institued a criminal case in the Nyay Panchayat against the plaintiff No. 3 disputing his possession over the plot No. 14, which was decided in his favour and the defendants have no concern with the land whatsoever. Cause of action arose when the defendants started threatening and interfering with the plaintiff's possession and also to demolish hut of the plaintiff, cut away trees and take forcible possession. The defendants filed written statement denying plaint allegation of the plaintiffs and disputed that the suit is not maintainable. The defendants claimed that they are in possession over plot No. 14 since last 10 years and constructed hut and khaprail and used the disputed land for tethering cattle etc. Possession is continuous, it was alloted by the Gaon Sabha and lease deed was executed in respect of area of 1.50 square yard to each of the defendants on 20.11.1978. Thus, they are in possession over 450 square yard of the land on the disputed plot and also certain area of plot No. 13. It was also denied that there was any contest with Gaon Sabha regarding the land in the Nyay Panchayat.
(3.) THE plaintiffs examined Israr as P.W. 1, Mohd. Ali as P.W. 2, and Bakrid as P.W. 3. Documentary evidence, in support of the plaintiff's contention filed was paper Nos. 8Ga, 9Ga, 31Ga and 64Ga. The defendants examined Rafi as D.W. 1, Nanhe D.W. 2, Chhangur as D.W. 3, besides documentary evidence from paper Nos. 50Ga, 54Ga and 67Ga and also paper Nos. 33Ga and 35Ga. The trial court decreed the suit placing reliance on a document purporting to be statement of Rafi, before the Nyay Panchayat and also judgment given in the earlier proceedings. The defendants/ respondents preferred a civil appeal, which stood allowed.;