- (1.) THIS a plaintiff's second Appeal in a suit for demolition of wall shown by letters B C and foundations shown by letters CD, DF, FJ, EM, and any other constructions which the defendants may make during the pendency of the suit and for possession over the land underneath, shaded yellow on the plaint map and on which the defendants may be found to be in possession. The suit was decreed by the trial court but was dismissed by the lower appellate court. The plaintiff's case was that he owned a plot in the nature of Chakki Khana, shaded blue on the plaint map, and the land shaded red and yellow was appurtenant thereto; that he had been the owner in possession thereof for the last 27 or 28 years; that the defendants had no concern with the land but they constructed a wall AB adjacent to the plaintiff's Chakki Khanna which obstructed the passage from the Chakki Khanna to the house shown by the letter Z at the back of the Chakki Khanna which passage was in existence for more than 20 years and was being used as such by the plaintiff continuously as of right and without any obstruction; that the defendants had encroached upon a part of land appurtenant to the plaintiff's Chakki Khanna the area of which was shaded red and had started digging foundations and making construction which were sought to be demolished.
(2.) THE defendants pleaded that the Chakki Khanna was constructed one Mast Ram 27 or 28 years ago, that the business failed and the Chikki Khanna property reverted to the zamindar; that the Chikki Khanna property was in the shape of a Khandhar (which) along with the other land was taken by the first defendant from the zamindar in the year 1948; that at any rate the land in question had never been the sehan of the Chikki Khanna and the plaintiff had no right of easement by way of passage as alleged. It was further pleaded that the land in dispute lay in plot no. 501 of which the first defendant was the bhumidhar and as such the suit was barred by S.49 of the U.P. Consolidation of Holdings Act. Plea of ownership by adverse possession was also raised. The plaintiff filed his replication alleging that the land in suit formed part of plot no. 117 and was obtained by his father and uncle from the zamindar by Ijazatnama dated 5th March, 1938. The trial court framed five issues. On the first issue it held that the plaintiff is the owner of the land in suit; on issue no. 2 that the suit is within time; on issue no. 3 that the defendants had failed to prove that they acquired any title by adverse possession; on issue no. 5 that the suit is not barred by Section 49 of the U.P. Consolidation of Holdings Act; and on issue no. 4 that the plaintiff is entitled to the relief claimed.
(3.) THE lower appellate court has not formulated the points arising for its determination but has held that the plaintiff has failed to established his ownership with regard to the land in suit and has also failed to show that it is a sehan and that, therefore, the plaintiff is not entitled to any relief. The learned counsel for the plaintiff-appellate urged that the finding of the lower appellate court is vitiated by treating the Ijazatnama dated 5th March, 1938 to be inadmissible in evidence. He urged that once the Ijazatnama is admitted in evidence it would show beyond any shadow of doubt that the plaintiff's predecessor in-interest had been allowed to build a Chakki Khanna which he did, and having done so became the owner of the Chakki, Khanna and entitled to use and enjoy it with all the land appurtenant thereto; and having continued to possess the Chakki Khanna when the zamindari was abolished on 1st July, 1952 the land underneath and appurtenant to the Chakki Khanna stood settled with him by the State Government under S.9 of the U.P. Zamindari Abolition and Land Reforms Act. The learned counsel for the appellant was also critical of the use made by the lower appellate Court of the S.49 of the U.P. Consolidation of Holdings Act in this matter. He urged that the Chakki Khanna was a building. It was not claimed by the plaintiff that he was a bhumidhar or sirdar or asami of the land. The defendants' claim that they were bhumidhars of the land in dispute was irrelevant because the consolidation authorities had not found it to be so, and indeed the nature of the land was such that it was not land within the meaning of that expression for the purposes of the U.P. Consolidation of Holdings Act, and the consolidation authorities had no jurisdiction to decide any dispute of title relating to such land. Now the Ijazatnama dated 5th March, 1938 is Ex.2. on the record. It was duly proved by the evidence of Devi Prasad, P.W. 1 who was the Patwari of the village from 1928 to 1953 and had scribed the document, and was exhibited by the trial Court. The ground on which it has been ruled out by the lower appellate court is that it is inadmissible in evidence for want of registration and insufficiency of stamp duty. On this point the learned counsel for the defendant-respondents urged that a perusal of the terms of the so called Ijazatnama shows that it was a perpetual lease. I have read the terms of the Ijazatnama and I am unable to hold that it was a perpetual lease. At any rate the ground of inadmissibility on account of insufficiency to stamp duty could not have been raised before the lower appellate court after the document had been admitted and exhibited in evidence by the trial Court; and even if the document was not effective as permanent lease, for want of registration, or even as to that for want of signatures of the lessor and the lessee both, it could certainly be looked into for the collateral purpose of showing the permissive nature of the plaintiff's possession, over the land.;