JUDGMENT

H.N. Srivastava, M. - This is a second appeal against the order of the learned Additional Commissioner Varanasi Division dated 10-10-1973 allowing the appeal against the order of the learned trial court dated 12-3-73 in a suit under section 209 of the UPZA & UR Act.

2. The case has a chequered history. The present appellant Mst. Manraji filed a suit under section 209 of the Act on 17-3-1966 seeking ejectment of the respondents from the disputed plot. It was contended that Barku and others defendants have made unauthorised construction on the disputed plots. A prayer was made for their ejectment. The suit was contested and it was claimed that the plots constituted their old abadi. The case was decreed in favour of the appellant plaintiff Mst. Manraji on 24-9-1966. In appeal the learned Additional Commissioner by his order dated 12-4-1967 remanded the case for proceeding with it afresh. The suit was dismissed by the learned trial court on 20-3-1970 as not maintainable. The learned trial court observed that the relief sought by the plaintiff cannot be given by a revenue court as it was not possible to get the defendants ejected and the constructions, if any, demolished in proceeding u/s 209 of the Act. Earlier to the above order, a commission was issued in order to ascertain if the disputed plot consists of any construction as contended by the plaintiff. The report of the commission was confirmed by the learned trial court on 14-5-1969. The plaintiff went in appeal against the order of the learned trial court dated 20-3-1970 before the learned Additional Commissioner. The latter allowed the appeal by his order dated 7-10-1971. We gave the following finding :

"Avar Nyalaya ka Adesh Purtaya Galat hai Vadni Ne Kewal Yahi uprain Mangi ki Prativadigarh nikshit Kiya Jaya. Aisa upram Antergat dhara 209 Uttar Pradesh Adhiniyam year 1951 ke Antargat di Ja Sakti Ha Aur Aisa Vad ke Nistaran ka Adhikar Kewal Rajaswa Nyalaya Ko hi Ha Vad patra dekhne se spasth Ha Ke 20-12-65 Ke Purv is Bhumi Me Koi Abadi Nahi thi. Yadi Ek Atiyari Anadhikar pravesh karne ke Paschat Krishi Bhumi Par Koi Emarat Bana Leta Ha to vah dhara 209 Ke Antargat Niskasit Kiya ja Sakta Ha. Yah dosri baat tha ki yadi Aisa Bhumi kabhi krishi Bhumi Nahi Rahi hai to Aisa Abhyukti Rakhi Jati Hai to us par parganadhikari ki uppati lena we Pashchat vad Nirest Ho sakti tha is samay Jaise sthiti hai Avar Nyalaya ka Pura Astchatra us vad ke Nirastkaran ka tha".

3. On remand the case was tried on merits by the learned trial court. By order dated 12-3-1973, the plaintiffs suit was decreed, the defendants were ordered to be ejected from the plots in dispute. Against that order, the defendants went in appeal before the learned Additional Commissioner. The later has set aside the order of the trial court by his order dated 10-10-1973. We referred to two applications in the above order observing that the trial court has erred in passing the order without disposing of those applications. We also inferred that since a commission of experts was appointed a second time by the order of the trial court dated 15-1-1970 the earlier report of the Commissioner should be taken as cancelled.

4. Second appeal has been filed against the above order of the learned Additional Commissioner. I have heard the learned counsel for the parties and have also perused the record. The learned counsel for the appellant has argued that the Commissioner whose report was confirmed on 14-5-1969 by the trial court, had given a clear report regarding the location of the plot and the constructions thereon. It was pointed out that the applications referred to by the learned Additional Commissioner have been satisfactorily disposed of by the trial court, that in any case the respondents bad not pressed or raised any argument in respect of those applications at any stage before the trial court while the case remained pending for a long time. It was also argued that since the report of the Commissioner had already been