JUDGMENT

K.M. Dayal, J. - This is a plaintiff, second appeal. The plaintiff filed a suit for partition of the disputed land AEFD shown partition of the disputed land AEFD shown in the map appended to the plaint. The allegation was that it was being used by them from the time of their ancestors as Sehan Darwaza and was also used for miscellaneous agricultural purposes for tying cattle etc. On the south of the land there was well and houses of the parties. Earlier all the property was joint but there was a partition amongst the ancestors and thereupon the parties acquired their respective shares. The disputed land was not partitioned but was kept joint for common use. The defendant No. 1 had dug foundations and started constructions illegally and forcibly. A partition of the land was sought claiming half share and separation by metes and bounds.

2. The suit was contested by defendant No. 1 claiming that the disputed land was his exclusive Abadi and it stood settled with him under S. 9 of the U.P. Zamindari Abolition and Land Reforms Act. This land was acquired by the answering defendant exclusively about 30 years back from the zamindar. The defendant had no right over the same.

3. The suit was tried by III Additional Munsif, Jaunpur. The suit was dismissed by the Munsiff holding that the disputed land was Abadi of the defendant and the plaintiff failed to prove that the disputed property was ancestral. The other issues were decided in favour of the plaintiff. An appeal was filed by the plaintiff before the District Judge. That appeal was heard and decided by Additional District Judge, Jaunpur. He agreed with the findings of the Munsif that the plaintiff had nothing to do with the disputed property and it belonged exclusively to the defendant.

4. The plaintiff has come up in this appeal.

5. I have heard the learned counsel for the parties.

6. Learned counsel for the plaintiff firstly argued that there was a compromise between the parties in respect of the disputed land which is mentioned in paper No. 63C on record. The compromise was oral. It was supported by an affidavit. The compromise has wrongly been rejected by the Court below. I have seen the judgment of the Court below that there was a counter-affidavit filed by the defendant and the compromise was totally denied. Under the circumstances the Court below has come to a finding of fact that no compromise was entered into between the parties. It is true that the Court below should have thoroughly examined the matter and should have called upon the parties to adduce evidence on the factum of compromise when there was a counter-affidavit. That would require remand of the case for that purpose. But in view of my decision on the second point, it is not necessary to remand the case for that purpose.

7. The second argument raised by the learned counsel was that he was entitled to the land as a co-sharer along with the defendant No. 1 as the land was joint Abadi land of the parties. After perusing the map prepared by the Commissioner (14-C) as well as the map which forms part of the plaint, I find that the disputed land is not covered by S. 9 of the U.P. Zamindari Abolition and Land Reforms Act. This is neither appurtenant to the house of the plaintiff nor to the house of the defendant. The house of the plaintiff is on the south of this land and his frontage is towards east. There is also a madha across the road beyond his house. The defendants' houses are still farther. Under the circumstances, I find that neither the plaintiffs plea of joint ownership nor the defendants' plea o acquiring rights under S. 9 of Zamindari Abolition and Land Reforms Act can be sustained. This land is away from the houses of the parties and could not be settled under S. 9 as appertaining to any building. S. 9 of the Zamindari Abolition and Land Reforms Act is very specific. It is not disputed that under S. 6 of the Act the entire estate belonging to Zamindar vested in the State free from all encumbrances.