Jai Singh Yadav vs Achhe Miyan

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the the appellant and learned counsel for the respondent who has appeared through caveat at the admission stage.

This is plaintiff''s second appeal arising out of O.S. No.113 of 2008, which was dismissed by Civil Judge Junior Division, Orai, District Jalaun on 25.10.2010. Against the said decree plaintiff appellant filed Civil Appeal No.103 of 2010, which was dismissed by A.D.J., Court No.3, Jalaun at Orai on 11.01.2012, hence this second appeal.

Defendant respondent is Manager of a Mazar. The relief claimed in the suit was that in the land lying towards east of the plaintiff''s house and towards west of the Mazar, the defendant Manager of the Mazar shouldbe restrained from opening a door. Admittedly main door leading to the Mazar is situate towards south. In the plaint map the disputed portion was shown as private rasta of the plaintiff.

Both the courts below held that the plaintiff failed to show his title or possession over the land in which defendant wanted to open a door of the Mazar. The plaintiff in his statement categorically stated that regarding ownership of the disputed land he had no proof. Plaintiff in his plaint stated that towards west of the land in dispute his house meant for tying cattles (makan maweshian) was situate. The courts below held that plaintiff completely failed to prove that the land in dispute settled with him u/s 9 of U.P.Z.A. & L.R. Act. Courts below also denied the said benefit (of Section 9) to the plaintiff on the ground that he had not stated that his house of animals was in existence on 01.07.1952 when the Act came into force. The concept of land appurtenant used in Section 9 of the Act is that itmust be essential for beneficial enjoyment of the house. For a house where animals are tied no such requirement is there.

In this regard it is also important to note that the courts below found that in the said house initially in the house tax assessment records name of Rahmat Khan was mentioned as owner, thereafter the name of Nakul Singh Yadav real brother of the plaintiff was entered and thereafter name of Mahendra Kumar son of the plaintiff was entered. The courts below further held that plaintiff completely failed to prove that house was in existence on 01.07.1952 when U.P.Z.A. & L.R. Act was enforced. Plaintiff did not implead his son as party in the suit.

Plaintiff placed reliance upon statement of the defendant wherein it was stated that 5-6 feet long chabootara of the plaintiff was there adjacent to his animals'' house and plaintiff was tying his cattles thereupon. By merely making a chabootara and tying cattles no one becomes owner. Moreover defendantswere not claiming any ownership. They were claiming that it was a rasta and they were also entitled to access to that. Even in the plaint map the word rasta is used however it is qualified by the word plaintiff''s.

I do not find any error of law in the impugned findings. Second appeal is therefore dismissed under Order XLI Rule 11, C.P.C.