- (1.) S. R. Yadav, J. This second appeal has been preferred against the judgment and decree dated 12-6-95 passed by the learned Additional Commissioner, Gorakhpur Division, Gorakhpur, arising out of a suit under Section 229-B of U. P. Z. A. & L. R. Act, heard and Decided by the SDO, Ghosi, District Man, vide the order dated 13-8-91.
(2.) I have heard the learned Counsel for the parties at length and have also gone through relevant papers on file. The learned Counsel for the appel lant mainly submitted that the disputed land was recorded as banjar and the same is in possession of the appellant prior and after the Zamindari Abolition who had planted trees over the same prior to aboli tion of zamindari as such, being grove-holder he had right to claim title, that the question of bar of the case under Section 49 of U. P. C. H. Act, was a mixed question of law and facts, that Ram Awtar and Chatthu ap plied for impleadment as party but without disposing of their applications, the suit has been Decided and that the appeal be al lowed and the matter be remanded to the learned trial Court for evidence and decision. In support of his case he has cited a case law reported in 1985 RD 153. In reply, the learned DGC (R) eon-tended that the orders passed by the learned Courts below are just and proper as such t he same be confirmed. Alter hearing the learned Counsel for the parties and perusing the records, I find the matter relates to plot Nos. 582 area 500 kari and 589 area 400 kari state in village Sarai Sadi, Pergana Havcli, Tahsil Ghosi, Distl. Mau, in respect of which a declaratory suit under Section 229-B of UPZA & LR Ad, was instituted with the pleadings that the appellant was in posses sion over the disputed land prior to zamindari aboltion and trees have been planted over the same; hence he had perfected his title over the disputed land as grove-holder. On issuance of the notices the suit was contested and the contentions of the plaintiff-appellant were denied by way of written 'statement. On the pleadings of the parties to the issues were framed by the learned trial court for determination of dispute: one of the issue being whether the suit is barred under Section 49of U. P. C. H. Act or not, the trial Court heard the parties on the above preliminary issue and passed the order dated 13-8-91 holding that the suit is barred by Section 49 of U. P. C. H. Act. Aggrieved by the order dated 13-8-91, the first appeal was preferred before the learned Commissioner, Gorakhpur Division, Gorakhpur. The learned Additional Com missioner vide the order dated 12-6-95 dis missed the appeal. Aggrieved by this order, the instant second appeal has been filed which is being heard by this Court.
(3.) NOW the question of decision is whether the consolidation Courts have right and jurisdiction to adjudicate the question of title over the banjar land or not. The next question for determination relates to the applications moved by Ram Autar and Chailhu for impleadment as parties in the matter. So far as the first question is concerned, in this connection the learned Counsel for the appellant at tracted my attention towards a case law reported in 1985 RD 153 in which the Hon'ble High Court held that the con solidation Courts/authorities have no right in respect of banjar land; the relevant paras are being reproduced below:- 'as regards the contention put forward by the learned' Counsel for, the appellant about finality of consolidation proceedings ii is obvious that admittedly the land in dispute was banjar. The Consolidation Authorities had no jurisdic tion to adjudicate upon the rights of the parties in respect of the banjar land. It was said that the Banjar land does not form part of holding and. therefore, the consolidation authorities had no jurisdiction to decide the rights about such land. Moreover, the plaintiff's claimed easementary rights with respect to this land. Section 4 of the easements Act defines an case ment as a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyments of that and, to do and continue to prevent something being done, in or upon, or in respect of certain other land no) his own. Thus, it is obvious that the adjudica tion about the easementary rights was not within the competence of consolidation authorities and so Section 49 of the aforesaid Act do not operate as a bar to this suit. By the above citation the Hon'ble High Court has Laid down a clear-cut law in respect of banjar land and it adjudication by the Courts. The facts and the cir cumstances of the instant matter is also same; hence the case law referred to above is fully applicable in the instant case. It is also noteworthy that the question of bar of Section 49 of U. P. C. H. Act, is a mixed question of law and facts ; for facts evidence is must, nothing can be inquired upon without taking and collecting evidence in respect thereof. Apparently in the instant matter no evidence has been taken. It is also surprising to note that both the Courts below have given an erroneous finding with respect to the impleadment applications moved by Ram Autar and Chatthu which still stand un disposed of. In the above circumstances, I am of the opinion that the orders passed by both the Courts below suffer from irregularity and illegality ; the points involved in the matter have not been enquired, analysed and assessed properly as such the orders passed by the learned Courts below cannot be sustained and there is ample force in the submissions made by the learned Counsel for the appellant while 1 find no force in the contentions, raised by the learned DGC (R ).;