SHITAL Vs. ASHA RAM

JUDGEMENT

(1.) THIS is an appeal by the defendant-appellants against the judgment and decree dated 8.8.75 passed by the Civil Judge, Jhansi, reversing a decree of dismissal of the suit of the plaintiff-respondent.

(2.) THE suit was filed for a declaration of title on the suit-property and for recovery of possession. It was stated that the suit-property, measuring 30 cubits x 20 cubits, was a Bera (fenced area) of the plaintiff adjacent north to his house. It was stated that the plaintiff's family was in possession of the same as owner since the time of his forefathers. It was further stated that the door of the house of the plaintiff opened on this Bera and the plaintiff has been using this Bera for stacking cowdung, by tethering the cattle and the like. THE plaintiff had a babul tree on this bera. This land was fenced by dried shrubs on four sides and the plaintiff had kept 10,000 pieces of bricks there. THE plaintiff further stated in the plaint that the defendants had no concern with the land and their house was far from this land but with an ill motive, they damaged the fence and forcibly started digging a plinth on the land in question and a dispute arose between the parties. THEre had been a proceeding under Section 145, Cr. P.C. as a result of this dispute and possession of the defendant on the suit land was upheld. Hence the suit.

(3.) THIS finding of the first appellate court has been challenged in this appeal and it was contended that the provisions of Section 9 of the U. P. Z. A. & L. R. Act were wrongly applied as there was no finding of the lower appellate court regarding possession on the date of vesting of the land. The order was also challenged on the ground that there was no finding as regards possession of the plaintiff or the defendants, both of whom laid counter claims on the land in question. It was contended further that the plaintiff had a burden of proof, within the purview of Section 9 of the U.P.Z.A. & L. R. Act and on his failure to prove the necessary facts, the court below could not have decreed the suit in his favour. Reliance was placed on a decision of the Allahabad High Court reported in AIR 1976 All 121. It was held in paragraph 20 of the said judgment, as reported, that Section 9 of the U. P. Z. A. & L. R. Act was an exception to the general rule and the burden lay on the defendants to establish that the land was such to which the provisions of Section 9 would apply. In that case, a plea of settlement under Section 9 of the Act was raised by the defendants.