Hon’ble S.U. Khan, J.—Heard Sri R.N.Singh, learned senior counsel assisted by Sri A.K. Rai and Sri V.K. Singh, learned counsel for appellant and learned standing counsel for State of U.P. and its authorities respondent Nos. 1 to 4 and learned standing counsel for respondent Nos. 5 and 6 Nagar Maha Palika (N.M.P.) Varanasi and Varanasi Development Authority (V.D.A.) Varanasi.

2. The only point which has been argued is that Civil Court has got jurisdiction to entertain suit in respect of acquisition under U.P. Nagar Mahapalika Adhiniyam (now U.P. Municipal Corporation Act) even though Civil Court has got no jurisdiction to entertain a suit challenging land acquisition under Land Acquisition Act. Learned counsel for the respondents 1 to 6 have argued that land acquisition either under land Acquisition Act or U.P. Nagar Mahapalika Adhiniyam (U.P.M.C. Act) cannot be challenged in a suit before Civil Court.

3. This Second appeal arises out of O.S. No. 176 of 1977 which was filed by the appellants against the respondents connected with original suit No. 274 of 1977 filed by Kedarnath and 9 others. The suit was filed after 15 years as acquisition had taken place in 1967. Some of the appellants (plaintiffs of O.S. No. 176 of 1977) had also filed writ petition in this Court challenging the Acquisition which was dismissed in default.

4. The grounds of challenge were that award was given in 1973 while it ought to have been given within 5 years from Acquisition i.e. till 1972 and the extension of period for giving award from 5 yeas to 10 years was not applicable to the acquisition in question. Award was given on 31.12.1973. The other grounds taken were that prior to the notice under 9(3) no other notice was served upon the plaintiffs’ that plaintiffs were not aware of the proceedings they ought to have been provided opportunity of hearing which was not done; that notice under Section 357 of U.P. Nagar Mahapalika Adhiniyam was not published in accordance with law that notice in respect of land acquisition was not published etc. The land was acquired for Bhadau Lower Income Housing Scheme. The trial Court/Civil Judge/Additional J.S.C.C. Varanasi through judgment and decree dated 2.2.1995 held that provisions of Sections 357,358 and 365 of U.P. Nagar Palika Adhiniyam were not followed. Accordingly, both the suits were decreed. However, the trial Court decreed the suits only for injunction but dismissed the same for possession holding the plaintiffs to be in possession. Nagar Mahapalika Varanasi, Varanasi Development authority and State and its authorities respondent No. 1 to 6 in the Second appeal did not file any appeal, however, plaintiffs filed appeal being Civil appeal No. 36 of 2005 against judgment and decree passed by the trial Court complaining that suit for possession should have been decreed after holding the acquisition to be null and void. The appeal was dismissed on 27.9.2011 by A.D.J. Court No. 14 Varanasi hence this Second appeal.

5. In para 3 of its judgment the lower appellate Court held that in view of Supreme Court authority reported in State of Bihar v. Dhirendra Kumar, AIR 1995 SC 1955, acquisition could not be challenged before the Civil Court. The contention of the appellant that State and Nagar Maha Palika and V.D.A. had not filed appeal hence lower appellate Court cold not reverse any finding which had been recorded by the trial Court in favour of the appellant was not accepted by lower appellate Court. In my opinion under Order 41 Rule 22 C.P.C. such a plea could be raised by State N.M.P. and V.D.A. who were respondents in the appeal before the L.A.C. It was also contended by the appellants that in two other suits i.e. O.S. No. 285 of 1972 and O.S. No. 274 of 1977 same acquisition proceedings had been declared to be null and void. Lower appellate Court held that the said decisions were not binding upon it.

6. The trial Court under issue Nos. 6 and 19 had held that plaintiffs were in possession.

7. Learned cou