JUDGMENT P.K. Jain, J.
1. Heard Sri Santosh Kumar, learned counsel for the appellant.
2. This is plaintiffs second appeal against the judgment and decree passed by the lower appellate court allowing the appeal of the respondent No. 1 and dismissing the suit of the plaintiff/appellant.
3. The plaintiff/appellant filed Suit No. 811 of 1996 with the allegations that Khasra Plot No 243 Situated at village Raeespur, Pargana Pasna, District Ghaziabad belongs to him since time of his ancestors and he is in possession of the same. There are certain constructions as stated in the plaint which exist on the said land and the land was being used by him as abadi, Main door of his house opens on this land and he was possessed of the land in suit from before zamindari abolition and land is vested in him under Section 9 of the Zamindari Abolition and Land Reforms Act. The defendants had no concern whatsoever with the suit land and had wrongly got the land entered as Banjar land in the Revenue Records. Proceedings under Section 122B were initiated against him and orders of eviction and compensations were passed against him. Revision filed against the said order was also dismissed. The defendants intend to demolish the constructions, hence the suit for injunction. It was alleged that the disputed land was not vested in the Nagar Nigam Ghaziabad and hence it has no right to demolish the constructions.
4. The defendant/respondent No. 1 contested the suit denying the plaint allegations and it was stated that the land of Khasra No. 243 area 7 Biswa is land of public utility and is entered in the revenue records as such, it Is vested in Ghaziabad Nagar Nigam and the plaintiff has made unauthorised possession over it. Orders of eviction under Section 122B of the Z.A. and L.R, Act have become final and during pendency of the revision the land of Gram Sabha Raeespur has been vested with Nagar Nigam Ghaziabad. Provisions of U. P. Zamindari Abolition and Land Reforms Act apply to the land in question and the suit is barred by the Sections 330 and 331 of the said Act.
5. The trial court framed a number of issues. Issue No. 1 related to the ownership of the land In suit. The trial court held that the plaintiff was owner In possession of the suit land. The finding was arrived at by the trial court on the basis of Khasra Settlement of 1335 Fasli with respect to Khewat No. 89 in which names of Dariyav Singh father of the plaintiff and one Karan Singh were entered, the Commissioner's report 18C in which the Commissioner reported that there are old constructions of the plaintiff existing over the suit land and plaintiff has been using it as abadi. Trial court also considered the oral evidence in which the plaintiff stated that the main door of the plaintiffs house opens on the suit land and his denial of the fact that the well on the disputed land was public land, and, that plaintiffs statement that Tubewell and its Kothi belonging to plaintiff was also constructed on the said land. The trial court also observed that the contesting defendant has failed to establish as to how the suit land was entered as "Banzar' in the revenue records. The trial court also observed "that since the land was being used as abadi land, it could not be property of Gram Samaj.
6. The lower appellate court reversed the finding of fact of trial court and held that the documents 51C has been misread by the trial court. This document relates to Khewat No. 89 in which there are 120 co-sharers. The plaintiff has not led any evidence that Plot No. 243 had come to the share of Dariyav Singh and Karan Singh and it is not clear from the said Khewat-as to which plot of Khewat No. 89 was allotted to which co-sharers. The lower appellate court also held that the plaintiff has not filed any pedigree of the family and concluded that the plaintiff has failed to establish that he was owner of Plot No. 243. Lower appellate court also found that the plaintiff had failed to prove that he was in possession of the suit land prior to coming of operation of Z.A. and L.R. Act. Provisions of the Section 9 of the said Act are not applicable to the fact of the present case. The lower appellate court also held that the finding of the trial court that the suit land is Abadi land, is also not correct as there Is no declaration under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act. The plaint map does not show any constructions on the suit land and only one kothi of tubewell is shown which was admittedly constructed in the year 1975. The lower appellate court held that in these circumstances, the land will be governed by the provision of the U. P. Zamindari Abolition and Land Reforms Act and the suit was barred by the Sections 330 and 331 of the Act. The lower appellate court also held that since proceedings under Section 122B of the U. P. Zamindari Abolition and Land Reforms Act have become final against the plaintiff, he could have filed a suit for declaration under Section 229 of the U.P.Z.A. and L.R. Act. Consequently, the lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff.
7. Learned counsel for the appellant has submitted that the lower appellate court has wrongly reversed the finding without considering the reasoning given by the trial court for arriving at a conclusion that the plaintiff was entitled to plead the ownership and in the alternative vesting of the land in his ancestors under Section 9 of the U. P. Act 1 of 1951. It is further submitted that the lower appellate court has wrongly held that the suit was barred by the Sections 330 and 331 of the U. P. Act 1 of 1951.
8. The trial court held that the suit land was abadi land. Therefore, civil court has jurisdiction. The lower appellate court has held that it was recorded as Banjar land and was not declared an abadi land under Section 143' of the Z.A. and L.R. Act. Therefore, it cannot be treated as abadi land. There is no error in the finding of the lower appellate court in this regard. Mere existence of certain constructions over a Bhumidhari land would not take it out of purview of the provisions of U. P., Zamindari Abolition and Land Reforms Act unless a declaration is made under Section 143 of the said Act. It was so held in Indrajeet Singh v. Arjun Singh, 1983 ALJ 388 ; Shiv Prasad v. Thakur Prasad, 1986 RD 253, and in several other cases. The trial court has ignored the law in this regard and on a mere finding that a tubewell existed on the land held it to be abadi land. The trial court has also ignored the provisions of Section 331A of the Z.A. and L.R. Act which provides that where a suit is instituted in any Court and question is raised whether the land in question is or is not used for purposes connected with agriculture, etc. and a declaration has not been made in this respect of such land under Section 143 or 144, the Court shall frame an issue on the question and send the record to Assistant Collector incharge of the Sub-Division for the decision of that issue only. This provision of law has also been ignored by the trial court.
9. Besides, this admittedly there were proceedings under Section 122B of the U. P. Zamindari Abolition and Land Reforms Act and order of eviction and compensation for damages was passed against the plaintiff and further revision filed against that order was also dismissed. Thus, the order under Section 122B had become final. The trial court also ignored this material fact.
10. Learned counsel for the appellant has argued that the land vested in the plaintiff/appellant under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. Section 9 reads as follows :
"9. Private wells, trees in abadi and buddings to be settled with the existing owners or occupiers thereof.--(All wells), trees in abadi and all buildings situate within the limits of estate belonging to or held by an intermediary or tenant or other person whether residing in the village or not, shall continue to belong to or be held by such intermediary tenant or person, as the case may be, and the site of the wells or the buildings within the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."
11. Provisions of Section 9 are applicable only when there is evidence and proof of the factum that there existed well or building on the land in question on the date of vesting. There is no averment in the plaint nor there is any finding of fact in this regard. Therefore, the finding of the lower appellate court that the land cannot be said to have been settled with the plaintiff is correct.
12. Having considered arguments advanced by the learned counsel for the appellant, 1 find that there is no error in the findings arrived at by the lower appellate court. The findings of the fact have been arrived at after due consideration of the material and legal questions. No substantial question of law is involved. The appeal is dismissed.
13. Before parting with, I am constrained to observe that the trial court has mis-directed itself both on facts and law. The Officer presiding over trial court either did not know the law or has ignored it intentionally. Consequently, the findings arrived at by the trial court" suffer from perversity.