SHYAMPATI Vs. RAM KARAN PANDEY

JUDGEMENT

(1.) Heard, Shri V.P.Nagaur, learned counsel for the appellant and Shri Ram Raj Ojha, learned counsel for the respondent No.1. The respondent no.2 has died and no other legal heir has been substituted and respondent no.3 is the court concerned.

(2.) Learned counsel for the plaintiff-appellant submitted that the First Appellate court has decided the appeal without following the provisions of Order XLI Rule 31 CPC as it has been decided without formulating the points of determination, which arises for adjudication and recording reasons for its decision on the said point. He further submitted that merely because the plaintiff-appellant, who is an illiterate lady could not give correct description of the things, it cannot be said that she failed to prove her case. He further submitted that the space between the house of the plaintiff-appellant and the land in dispute is part of her property and left for rain water and on account of same it cannot be said that the land in dispute is not appurtenant to the house of the plaintiff-appellant. He further submitted that merely because the Husk is existing on the land in dispute, it cannot be said that it is not Sahan of the plaintiff-appellant because in view of the provisions made in the United Provinces Village Abadi Act, 1948 the house owner is entitled to make construction in the Sahan Darwaja or land appurtenant to the house as may be necessary for agricultural and domestic purposes. He also submitted that a person ordinarily residing in an area of the Gram Sabha is entitled to be registered in the village Register as per U.P.Panchayat Raj (Maintenance of Village Register) Rules 1970 and since the name of the plaintiff-appellant is recorded in the Family Register, her rights on the land in dispute cannot be disputed. He also submitted that all efforts have been made by the defendants-respondents for forceful possession on the land in dispute and making construction. The plaintiff-appellant tried to get it settled before filing the suit but merely on this ground it cannot be said that the land in dispute is not of the plaintiff-appellant. Thus since the plaintiff-appellant is in possession of the land in dispute since prior to abolition of Zamindari and her house is existing adjacent to the land in dispute and the land in dispute is being used for various agricultural and house hold purposes since the time of ancestors of her husband, it is settled with them under Sec. 7 (aa) and 9 of the U.P.Z.A.&L.R.Act. He also submitted that if there was any dispute in regard to settlement of land in dispute with the parties under Sec. 9 of the U.P.Z.A.&L.R.Act the issue should have been framed and decided after affording opportunity of evidence to the parties.

(3.) On the basis of above, learned counsel for the plaintiff-appellant submitted that the findings recorded by the first appellante court are perverse, illegal and based on conjectures and surmises, therefore the same are not sustainable in the eyes of law and are liable to be set aside by this court and the appeal is liable to be allowed. He relied on Maharaj Singh Versus State of U.P. and others; (1976) 1 SCC 155, judgment and order dtd. 27/3/2019 passed in Second Appeal No.232 of 1990; Jhoori and others Vesus Shambhoo Nath and others.