MEWA LAL Vs. DAL SINGAR

JUDGEMENT

(1.) This is a Plaintiff's second appeal in a suit for demolition of a tin-shed shown by letters LMNT on the plaint map, a Nad and certain Khuntas as also a hut and another tin-shed and three Gumtis, and for possession over the land.

(2.) The trial court decreed the suit but the lower appellate court has dismissed it. Hence this second appeal.

(3.) The Plaintiff claims to have purchased the land, in suit for one Hira Pandey, who was indisputably the bhumidhar thereof. The purchase was made in the year 1957 by a sale-deed dated 21st August, 1957. The suit was filed on 28th March, 1966. The first finding arrived at by the lower appellate court is that on the statement of the Plaintiff Mewa Lal himself who appeared as PW 3, the cause of action as pleaded in the plaint was false and the Defendant entered into possession over the land in dispute in the year 1958 itself. The next finding arrived at by the lower appellate court is that the land in suit was not 'land' within the meaning of the U.P. Zamindari Abolition and Land Reforms Act and that it has been so far a very long time before the abolition of Zamindari and that, therefore, Hira Pandey was not the bhumidhar thereof and accordingly the Plaintiff also could not be the bhumidhar of the land in suit. The last finding arrived at by the lower appellate court is that the land in suit was in the possession of the Defendants for the last 16-17 years and has been part of their Sehan. This last finding was based on the statement of another witness of the Plaintiff, namely, Soman (PW 2). Mr. S.R. Misra, learned Counsel for the Appellant has attacked the finding of the lower appellate court that the land in suit was not 'land' within the meaning of the U.P. Zamindari Abolition and Land Reforms Act and that, therefore, the Plaintiff could not be the bhumidhar thereof, on the ground that the finding was without jurisdiction. Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act provides that if in any suit relating to land held by a bhumidhar instituted in any court, the question arises or is raised whether the land in question is not used for purposes connected with agriculture etc., and a declaration has not been made in respect thereof under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector Incharge of the Sub-Division for the decision of that issue only and that the Assistant Collector concerned shall proceed to decide the issue in the manner laid down for making a declaration under Section 143 or 144, as the case may be, and return the record back with the finding thereon to the court which referred the issue.