IMPORTANT POINT
The main legal point established is that for claiming a right under Section 123(1) of the Act of 1950, the claimant must prove possession and the construction of their house prior to the Act, and provide evidence of the terms and conditions for holding the housing site.

JUDGMENT :

1. Heard Shri Prabhat Kumar, learned counsel for the appellants and Shri Mohan Singh, learned counsel for the respondent no.3.

2. This second appeal has been filed for setting aside the judgment and decree dated 25.01.2024 passed by the First Appellate Court i.e.Additional District Judge, Court No.1, Sultanpur in Civil Appeal No.182 of 2001 (Fagoo Ram And Others vs. Ram Laut and Others) and the judgement and decree dated 22.10.2011 passed by Trial Court i.e. Civil Judge (J.D.), Kadipur, Sultanpur in Original Suit No.337 of 1989 (Fagoo Ram and Others Vs. Ram Laut and Others).

3. Learned counsel for the appellants submits that the father of the appellants had filed a suit for permanent injunction and declaration of right on some part of Gata No.105 as an appurtenant land to his house, which is situated on Gata No.106, on the ground that the appellants are in possession of the land in dispute since prior to the promulgation of the U.P. Zamindari Abolition and Land Reforms Act-1950 (here-in-after referred as the Act of 1950), therefore it stands settled with them under Section 9 of the said Act. He further submits that an alternative plea was also taken that even if the possession of the appellants is not found since prior to promulgation of the Act of 1950, since the appellants are in possession on the land in dispute, since before 1985, therefore the same stands settled with the appellants under Section 123(1) of the Act of 1950. But the learned Trial Court as well as the Appellate Court have dismissed the claim of the appellants on insufficient ground and without considering the evidence adduced before the Trial Court rightly and appropriately. Learned counsel for the appellants also submits that the Appellate Court has failed to record any finding in regard to the possession of the appellants on the land in dispute and the finding recorded in regard to Section 123 (1) of the Act of 1950 is not tenable, therefore the appellants are before this Court.

4. On the other hand, learned counsel for the Gaon Sabha submits that judgment and order passed by the Trial Court as well as Appellate Court have rightly been passed in accordance with law after considering the pleadings of the parties and the evidence adduced before the Trial Court as they have failed to prove their possession on the land in dispute. He further submits that the benefit of Section 123(1) of the Act of 1950 is also not available to the appellants because the house of the appellants has not been found on the land in dispute and the benefit of the same is available only in case the house has been built on any such land. Thus the submission is that the appeal is misconceived and liable to be dismissed.

5. Having considered the submissions of learned counsel for the parties, I have perused the documents placed on record of this second appeal.

6. The Original Suit No.337 of 1989 was filed by the predecessor-in-interest of the appellants for permanent injunction and declaration on the ground that the land in dispute, which is the part of Gata No.105 and which is on the eastern side of the house of the appellants which is on Gata No.106, is in possession of the appellants and they are using it since prior to the promulgation of the Act of 1950, therefore it stands settled with him under Section 9 of the Said Act. The alternative plea of Settlement of land in dispute with the appellants under Section 123 (1) of the Act of 1950 was also taken.

7. The learned Trial Court after affording opportunity of evidence and considering the pleadings and evidence adduced before it, has recorded a categorical finding that the appellants have failed to prove the construction of the house of the appellants prior to promulgation of Act of 1950. Thus, they have failed to prove the possession on the land in dispute. Even otherwise on the western and northern side of the house of the appellants, there is sufficient land for his use. Accordingly dismissed the suit. The Appellate court als