IMPORTANT POINT
The court established that appurtenant land is defined by its beneficial use for a building, and that historical ownership and possession are critical in determining property rights, particularly in disputes involving joint family properties.

JUDGMENT :

(Rajnish Kumar, J.) :

1. Heard Shri Bajrang Bahadur Singh, learned counsel for the appellants and Shri Ved Prakash Yadav, learned counsel for the respondents.

2. This Second Appeal under Section 100 of the Civil Procedure Code 1908 has been filed for setting aside the judgment and decree dated 30.09.2003, passed by the Additional District Judge/Special Judge, E.C.Act, Court Room No.8, Sultanpur in Civil Appeal No.5 of 1998; Hriday Ram and others Versus Ram Kuber and others and the judgment and decree dated 11.11.1997 passed by the Civil Judge,( Jr.Div.), North, Sultanpur in Regular Suit No.949 of 1993; Hriday Ram and others Versus Ram Kuber and others.

3. This appeal was admitted to decide the following substantial questions of law:-

“1. Whether, the report of the Commissioner indicating that disputed abadi falls facing the house of the defendant, will it deprive the plaintiff appellant to use the abadi land as it was used by the common members of the family?

2. Whether, the claim based on the joint property and there is admission of the defendant that three Bhitoor and Ghhor are in existence, the courts below could reject such admission of the defendant without arising (which should be assigning) any cogent reason whatsoever?

3. Whether, the judgment of the learned appellate court is justifiable as he has said that there is no need to re-examine the evidence although the trial court has misread the evidence of D.W.2 who has given evidence with regard to jointness of the property?

4. Learned counsel for the appellants submitted that the land in dispute was being used commonly by the plaintiffs-appellants (here-in-after referred as appellants) and the defendants/respondents (here-in-after referred as the respondents) since the time of their ancestors. It is coming from the common ancestors of the parties Bakhtawar. The partition had taken place between the two sons of Bakhtawar i.e. the predecessor-in-interest of the parties Buddhu and Shiv Raj except the land in dispute. The respondents tried to make construction on the land in dispute, therefore the appellants had to file the suit for permanent injunction for restraining the respondents from making any construction on the land in dispute or removing the Ghhor, Condore and Kharhi etc. of the appellants or cut the trees and Banskot etc. without partition. He further submitted that the joint ness of the property was not disputed by D.W.2, but the learned Trial court has misread the same and learned Appellate court without considering the same dismissed the appeal. The courts below have also failed to consider that there is admission of the respondents that three Bhithoor and Ghhor exists on the land in dispute. He further submitted that merely because the land in dispute is facing the house of the defendants does not deprive the appellants from using as his abadi because it was being used by their common members of family. On the basis of above learned counsel for the appellants submitted that the trial court as well as the appellate court have committed grave miscarriage of justice by recording erroneous and perverse findings without considering the evidence on record correctly and dismissed the suit as well as the appeal, therefore the same are liable to be set aside.

5. Per contra, learned counsel for the respondents does not dispute regarding their ancestors Buddhu and Shiv Raj. However he submitted that they are in possession on their properties since the time of their ancestors and the question of partition does not arise. The land in dispute was a pond situated on the northeastern side of the house of the respondents which was filled in by the respondents and they are in possession of the said land since prior to abolition of Zamindari. Thus they have got the right and entitlement over that land in dipsute under Section 7-AA of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 (here-in-after referred as the Act of 1950) and it is settled with them on