- (1.) THIS appeal is directed against the judgment of the Additional Civil Judge, Ghazipur dated 20th April, 1961 in Civil Appeal No. 458 of 1960 Raja Tewari v. Ram Lal Tewari and others, whereby the judgment of the trial court in suit No. 62 of 1959 Raja Tewari, Plaintiff v. Ram Lal Tewari and others, Defendants stands confirmed.
(2.) THE brief facts of the case giving rise to this appeal are that the plaintiff alleged to be sirdar in possession of the disputed plots Nos. 1050 and 1051. He alleged that in plot No. 1050 a Mahuwa tree had been planted by his great grand-father with the permission of the Zamindar and he continued in possession over the same all along, and that the defendants or their ancestors had no concern with the tree and they wrongly threatened to use the usufruct of the tree. THE plaintiff further alleged that the defendants had filed a case against the uncle and brother of the plaintiff in the Panchayat Adalat and it was unlawfully decided by the Panchayat Adalat and as such the defendants became courageous and wrongfully tried to interfere with the possession of the plaintiff over the said Mahuwa tree and they did not abstain from disturbing the possession of the plaintiff, hence the suit for perpetual injunction against the defendants restraining them from interfering with the use of the usufruct of the Mahuwa tree situated in the disputed plot No. 1050. A further relief was also claimed that the defendants be restrained from cutting the tree and from giving any threatening to the plaintiff in respect of the tree as well as a prayer for possession was also made in case the plaintiff was found out of possession over it. The contesting defendants denied the claim of the plaintiff and alleged that the plaintiff or his predecessors-in-interest were never in possession over, plots Nos. 1050 and 1051 nor were they sirdars of the disputed plots. It was further contended that the Mahuwa tree was never planted by the great grandfather of the plaintiff or by the plaintiff' s ancestors as alleged. It was admitted by the contesting defendants that a case was filed against the plaintiff' s uncle and his brother in the Nyaya Panchayat and the case was rightly decided against the plaintiff. The defendants had put forward their claim that the disputed tree was planted by their prcdecessors-in-interest and they have continued in possession over the same by using usufruct thereof and that the suit was barred by limitation, principle of estoppel and acquiescence as well as non-joinder of necessary parties. The trial court framed necessary issues arising out of the pleadings of the parties and found that the suit was not bad for non-joinder of necessary parties and that the plaintiff is sirdar in possession of the disputed plots, but the defendants are the owners in possession of the tree in suit and that the suit was barred by time. Hence the trial court found that there was no necessity to record findings on the question of estoppel and acquiescence, and lastly held that the plaintiff was not entitled to the reliefs claimed. Thus the suit was dismissed by its judgment dated 10-9-1960.
(3.) AGGRIEVED by the decision of the trial court the plaintiff preferred an appeal which was dismissed by the lower appellate court by its judgment dated 20th April, 1961. The plaintiff has come up in Second Appeal and the learned counsel for the plaintiff-appellant urged two points before me; Firstly, it was contended that Rule 26-A framed under the provisions of U. P. Zamindari Abolition and Land Reforms Act has been declared as ultra vires by this Hon' ble Court and the judgments of the courts below have been based thereon hence the judgments should be set aside and the case should be remanded back for trial afresh. Secondly, it was contended that the plaintiff had acquired the tree under the provisions of Section 81 of the U. P. Tenancy Act and the judgment of the lower appellate court was characterised as wrong and illegal. He further emphasised that the lower appellate court misinterpreted the provisions of Section 81 of the U. P. Tenancy Act and drew wrong inference therefrom.;