Shri Ram Janm vs Bansh Raj and Another

Sibghat Ullah Khan, J.—Heard Learned Counsel for the appellant as well as Learned Counsel for the respondents who has appeared through caveat.

This is plaintiff''s second appeal arising out of O.S. No.685 of 2005, which was dismissed on 12.05.2009 by Additional Civil Judge Junior Division Court No.14, Azamgarh. Against the said decree plaintiff filed Civil Appeal No.106 of 2009, which was dismissed by A.D.J. Court No.6, Azamgarh on 29.09.2011, hence this second appeal.

The suit was filed for permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiff over two pieces of lands, one lying in the north of the house of the plaintiff with plaintiff''s sahan and rasta/ kharanja intervening and the other lying immediately towards east of the plaintiff''s house. The first piece of land was shown by letters aa, ba, sa, da in the plaint map and other as ka, kha, ga, gha. The second piece of land was described as koliya in the plaint map. Copy of the plaint map has been filed along with supplementary affidavit. Plaintiff claimed that both the pieces of lands settled with him u/s 9 of U.P.Z.A. & L. R. Act and even otherwise he was owner in possession of the same.

Both the courts below held that none of the pieces of lands settled with the plaintiff and he was not in possession thereof.

As far as first piece of land aa, ba, sa, da is concerned in the plaint map it has been shown to be situate far away from the house of the plaintiff. Sufficiently big portion lying immediately towards north of the plaintiff''s house has been shown as plaintiff''s sahan, thereafter rasta/ kharanja has been shown and thereafter disputed land aa, ba, sa, da is shown. The said land can never be settled u/s 9 of U.P.Z.A. & L.R. Act. Under the said Section only such land which is appurtenant to a house, is essential for beneficial enjoyment of the constructed house and which is actually being used as such and it has got a reasonable ratio with the constructed portion can be settled with the owner of the house/ constructed portion. If a person has got a small house in a big plot he cannot claim the entire plot to have settled with him u/s 9 of the Act. Plaintiff had also sought closure of a door shown by letter cha in the plaint map in the house of the defendants, which is situate towards east of aa, ba, sa, da land. As the said land did not belong to the plaintiff hence there was no question of directing the defendants to close the door. Both the courts below after taking into consideration the oral evidences came to the conclusion that land shown by letters aa, ba, sa, da was being used by the defendants for a very long time.

As far as land lying immediately towards east of the plaintiff''s house described by letters ka, kha, ga, gha is concerned, courts below held that it was land of defendants. Commissioner has also shown it to be land of the defendants. In respect of ka, kha, ga, gha land plaintiff had stated that he was using the same for white-washing and repair of his house. However courts below have held that ka, kha, ga, gha land is part of defendants'' ahata.

PW-1 in his oral statement admitted that towards east of plaintiff''s house ahata of Bansh Raj defendant was situate which was quite old. Similar thing was stated by PW-2.

I do not find any error in the impugned findings which are basically findings of fact. The first piece of disputed land is so far away from the house of the plaintiff that it could not have settled with him u/s 9 of U.P.Z.A. & L.R. Act. Defendants have been found to be in its actual use and occupation In respect of second piece of land plaintiff''s witnesses admitted that it was part of ahata of defendants.

Accordingly, second appeal is dismissed under Order XLI Rule 11, C.P.C.

Appeal has been dismissed today under Order 41 Rule 11 CPC. Arguments were heard and judgment was reserved on 31.10.2011. Just before delivery of judgment Sri Mahesh Gautam, Learned Counsel for the appellant stated that respondent no.1 had died on 30.12.2011. However, as argument had been heard and judgment had been reserved on 31.10.2011 hence subsequent death of any party would not abate the appeal and in such situation in view of Order 22 Rule 6 CPC there is absolutely no need to file any substitution application.