This appeal is directed against the judgment and decree dated 22. 12. 1973 in Civil Appeal No. 96 of 1973 passed by Sri Govind Prasad, III Temporary Civil and Sessions Judge, who dismissed the aforesaid appeal with costs and affirmed the judgment and decree of Sri V. N. Chaddha, Munsif in Civil Suit No. 62 of 1970.

The dispute relates to plot No. 651; old number of plot No. 651 was 833 measuring 4 Biswas and 4 Dhurs. This land is situate in village Barhpur, Nandganj Market, Pargana Saidpur district Ghazipur and has been detailed at the toot of the plaint. A major portion of this plot covered by two houses of the plaintiff abutted the Ghazipur-Varanasi road. The following pedigree which was not controverter before me and was laid in written statement shall be helpful to appropriate the controversy in volved -

Pedigree: Ram Saran Singh

Udit Narain Singh

Nand Kishore Singh Shrimati Muna Kunwar

Sahdeo Balbhaddar Singh

Singh Raj Kumari Devi

Bhopender Pratap Singh Plaintiff No. 2 Shrimati

Manseeti Kunwar Plaintiff. No 1 Mahender Pratap Singh Shrimati Lakshmi Devi

Narender Pratap Singh Shrimati

Nirmala

Devi

Plaintiff

No. 3.

The suit was filed for a mandatory injunction to make over the land in dispute measuring 1 biswa 10 Dhurs to plaintiffs denuded of all the constructions land over the same by defendant No. 1; a perpetual injunction was also sought restraining the defendants from interfering with the plaintiffs possession over the land in dispute, in the alternative there was a prayer for recovery of possession. The costs of the suit were also claimed.

The case laid in the plaint was that the plaintiffs acquired plot No. 833 and other plots through a registered lease dated 13. 11. 1982. From the time of the execution of the lease, the plaintiffs and their legal heirs have been in continuous possession over the disputed land. It was much before the

con solidation operations that plaintiffs constructed two houses over a portion of plot No. 833. A little portion of the said plot was left vacant; the foundations thereon were filled up to the ground level. As the house stood on this land, so it was declared as abadi site during consolidation operations. The defendants had nothing to do with any portion of this plot but it was in March 1970 that defendant No. 1 tried to forcibly raise some constructions over the same.

Subsequently, plaintiffs learned that the aforesaid vacant piece of land was treated by the administrative authorities as the land of the Gram Samaj and so they gave it in exchange of some other land to defendant No. 1. Such action was quite illegal and could not authorize the defendant No. 1 to usurp the plaintiffs land.

The Gram Samaj did not contest the claim.

The suit was resisted by Ram Nath respondent only on the ground that the lease through which the plaintiffs claimed their title was a sham transaction which was never acted upon. Before coming into force of U. P. Act No. 1 of 1951 (U. P. Zamindari Abolition and Land Reforms Act), one Biswa and four Dhurs of this plot was in possession of Sita Ram and others and two Biswas in possession of one Jawahar Bind. The rest of the area of the plot was lying vacant. So after vesting, Sita Ram and Jawahar etc. became Sirdars of the area in their respective portions and the vacant area by force of the stature became the property of the Gram Samaj.

During the consoled action operations the entire area of plot No. 833 came to be declared as abadi. In any case, the plaintiffs were neither recognized as owners over any portion of that plot, nor had they any interest in the plots at any Stage. In 1969, the State Government chalked out a scheme to construct a Family Planning Hospital in Nandganj and the defendant Plot No. 685 was chosen as the site. Having learnt about it, defendant approached the authorities. The Collector visited the site and on his suggestion, the contesting defendant agreed to accept in exchange of his land, an area of one Biswa 13 Dhurs of Plot N