JUDGMENT

K.B. Asthana, J. - This is a defendants' appeal from the concurrent decree of the two courts below declaring that the plaintiff was the owner of the construction, in suit along with the land appurtenant thereto demarcated in the Commissioner's map and defendants had no concern with it. The Commissioner's map has been made a part of the decree.

2. Admittedly the first plaintiff, who is the first respondent in this appeal was the Zamindar and the land on which the structures in dispute stood belonged to him. The second plaintiff who is the second respondent in this appeal was his Mukhtar-e-Am. It is said that a market used to be held in the area of which the land below the disputed structure, forms a part and on the vesting of they estate in the State of Uttar Pradesh under the U.P. Zamindari Abolition and Land Reforms Act (hereinafter called the Act) on 1-7-1959 the market vested in the State and under Section 117 of the Act on the publication of the notification the said market came to be vested in the Gram Sabha who is now the first appellant in this appeal. The second appellant is the Gram Samaj which since then has become extinct under the law. A dispute arose between the plaintiffs and the defendant Gram Sabha as to the ownership of the structures standing on the land in plot No. 742 on which the market used to be held. The plaintiffs claimed that the said structures having been constructed prior to 1-7-1952 under Section 9 of the Act the first plaintiff would retain the ownership thereof and the land below it and the land appurtenant thereto would be deemed to be settled with him, hence the Gaon Sabha will have no right or title to claim its owner ship. The defendant Gaon Sabha claimed the title and right over the structures on the basis that the market having vested in it under the Act and the structures in dispute not being `buildings' within the meaning of Section 9 of the Act as also having been constructed after 1-7-1952 by the plaintiffs, the land below it will not be deemed to have been settled with the plaintiffs and they cannot claim any right or title in the land and in the construction. The controversy led to the suit which has given rise to this appeal.

3. The first plaintiff sought a declaration of his ownership of the structures and the land below it and appurtenant to it. The Gaon Sabha as well as the Gram Samaj, which existed then, both contested the suit. A large number of pleas, factual and legal, were raised. I am not concerned in this appeal with the technical pleas raised on the validity of the notices under Section 80, the suit being barred by limitation and so on, as all those pleas have been answered against the defendants by the learned Civil judge who tried the suit and no controversy was raised in regard to those pleas in the lower appellate court. The learned Civil judge on the material issues with which I am concerned in this appeal, found that the structures were raised by the plaintiffs prior to 1-7-1952 and they were in existence on the day of vesting under the Act. He also found that on the facts established the structures in dispute would be building within the meaning of Section 9 of the Act and the first plaintiff would retain the ownership thereof and the land below it and appurtenant would be deemed to have been settled with him. On the findings recorded the suit of the plaintiff was decreed.

4. On appeal by the defendants the only points which were pressed before the lower appellate court were that the finding that the structures were raised prior to 1-7-1952 was erroneous and that the structures as such would not constitute a building within the meaning of Section 9 of the Act. The learned judge of the lower appellate court affirmed the findings of the learned Civil judge and dismissed the appeal.

5. In support of this appeal the learned counsel for the defendant appellant raised two grounds : (1) that the finding of fact that the structures were raised by the plaintiffs pri