Heard.
Cause shown is sufficient for approaching the court beyond 39 days.
Accordingly delay in filing the Appeal is condoned.
Let the appeal be given a regular number.
Order Date :- 27.1.2010 F.H.
Hon'ble Rakesh Sharma,J.
Heard Sri Umesh Chandra Tiwari, learned counsel for appellants and perused the judgments rendered by the Trial Court on 13.5.2002 and by the First Appellate Court on 09.9.2009.
A suit was preferred by the appellants before Addl. Civil Judge (Junior Division), Allahabad seeking permanent injunction against Gaon Sabha, Didhiya, Tappa- Manda, Pargana, Khairagarh, District Allahabad and Collector Allahabad. It was claimed that there existed three mango trees on a village land bearing gata No. 1211, having an area of 4 biswa. These mango trees were planted by the forefathers of the appellants. These three mango trees may not be fallen or the land upon which these stand may not be allowed to any other person. The suit which was filed in the year 1997, was dismissed on 13.5.2002. The appeal was preferred and the First Appellate Court recording a concurrent finding of fact that the Gata No. 1211 is recorded as Naveen parti in the Revenue and consolidation record. Even in consolidation proceedings this land was recorded as Gram Sabha land, Naveen Parti. This land was not a part of any individual's property or agricultural land. Both the courts below have recorded concurrent finding that the land in dispute was the land of Gaon Sabha. The plaintiff appellants can not claim that this land was his property.
Reliance was placed on customary law by citing AIR 1982, ALD 307 Kalpu and others versus Sanaur Khan. The courts have distinguished this ruling on the ground that in the said case a judicial finding was recorded by a competent Court in case no. 598 of 1955 that the plaintiff was owner of the trees situated at Banjar land. A competent Court had concluded this controversy but in the present case was adjudicated, in view of a situation where Section 26A of U.P. Z.A. and L.R. Act has ceased to exit. The land has already been vested in Gaon Sabha and is recorded as Naveen Parti. The villagers always eat mangoes fallen from such mango trees during the season. Mango trees were planted at Gaon Sabha / Public land during season. The findings recorded by the courts below appear to be unassailable. The Gaon Sabha is the owner of the trees.
In view of the above, no interference is required and no substantial question of law has been made out. What is available on record are bare findings of fact recorded by the courts below. Accordingly the second Appeal is dismissed.
Order Date :- 27.1.2010 F.H.