BEHARI LAL Vs. SUKHBIR SINGH

JUDGEMENT

(1.) THIS is a second appeal by a plaintiff who was the managing trustee of the school trust which is the zamindar of a certain village Khatauli. The plaint sets out that the plaintiff as zamindar claims the demolition of the extension of a platform by the defendants and certain other constructions which the defendants have made in Nos. 249, 237 and 248 of the abadi of qasba Khatauli. The defence was that the plaintiff had no cause of action in regard to these numbers and that the defendants had been long in possession of No. 248 and the other numbers. The finding of the lower appellate [Court was that the three numbers were shown by the Revenue Records as being in the zamindari of the plaintiff but that the numbers were situated in the town area of the town of Khatauli and, there fore, the presumption that the zamindar was the owner of every inch of land did not apply in the present case. The Court held that the khasras produced did not show the ownership of the plaintiff in the site of these plots and the Court definitely held; "I, therefore, hold that the plaintiff is not the owner of the site of the plots in dispute." As regards plot No. 248 the Court held that the defendants had made an objection at the time of partition in 1896 to the effect that they were the owners of this plot and that the defendants had remained in possession ever since. Accordingly, as regards this plot, the Court held that the defendants were the owners of that plot and the other two plots, Nos. 237 and 249, were held by the lower Court as being the public thoroughfare belonging to the Town Area Committee. Learned Counsel in appeal argued that the zamindar of an agricultural village was entitled to the zamindari rights of proprietorship in all these plots. In the first place we consider that the finding of fact of the lower appellate Court is conclusive. In the next place we would refer to the provisions of U.P. Act 2 of 1914, the Town Areas Act, Section 3, Sub-sections (1) and (2). It is there laid down that in making a notification the Local Government should not declare an agricultural village to be a town area or to be included within the limits of a town area and further: The decision of the Local Government that an inhabited area is not an agricultural village within the meaning of the proviso to Sub-section (1) of this section shall be final and conclusive and the publication in the Gazette of a notification declaring such area to be a town area or within the limits of a town area shall be conclusive proof of such a decision.

(2.) ALTHOUGH the lower appellate Court did not refer to this provision it is clear that it acted on the principle of this provision and we consider that the lower appellate Court was correct. Nothing further has been shown by learned Counsel. We accordingly dismiss this second appeal with costs.