Ganga Nath, J.
1. This is a defendant's appeal and arises out of a suit brought against him and the other defendant by the plaintiff, respondent for possession of a house situated in plot No. 40 in pattighair mustadai in mauza Bindki Kohna. The plaintiff's case was that he was the zamindar of the patti and that the house was in occupation of Angana as a riaya. After his death his widow was in possession who also died about one and half years before the suit. The defendants have no right to occupy the house and are mere trespassers. Defendant 1 contended that he was occupying the house as tenant of defendant 2. Defendant 2 contended that he was the adopted son of Angana. It was also contended on behalf of the defendants that the plaintiff was not the owner of the site. The trial Court found that the plaintiff was not the owner of the site and dismissed the suit. On appeal, the lower Court found that the plaintiff was the owner of the land as zamindar and defendant 2 was not the adopted son of Angana and consequently the defendants had no right of possession. Defendant 1 has come here in second appeal. It has been urged on behalf of the appellant that the plaintiff is not the zamindar of the land in dispute and consequently he has no right to get possession. It has been admitted by the plaintiff's son and mukhtar-e-am, Arjun Singh, that the land in dispute is in notified area. Section 337, Municipalities Act, 1916, lays down:
(1) The Local Government, by notification, may declare that in respect of any local area, other than a Municipality, town area or agricultural village, it is desirable to make administrative provision for some or all of the matters described in Sections 7 and 8 by extending thereto the provisions of this chapter. (2) A local area in regard to which a notification has been issued under Sub-section (1) is hereinafter called a notified area. (3) The decision of the Local Government that a local area is not an agricultural village within the meaning of Sub-section (1) of this section shall be final and conclusive, and a publication in the Gazette of a notification declaring such area to be a notified area shall be conclusive proof of such decision.
2. According to this section, a notification is to be made by the Government in respect of any local area other than an agricultural village. The decision of the local Government that the local area is not an agricultural village shall be final and eon-elusive. After the notification, it cannot be said that the area in respect of which a notification has been made is an agricultural village. Consequently the patti which is included in the notified area and in which the house in dispute is situated cannot be regarded as an agricultural village and the plaintiff as its zamindar cannot claim any right in the soil. Reliance has been placed by the learned Counsel for the respondent on Rafi-Ullah Khan v. Mt. Mumtaz Begum : AIR1927All609 , Sheo Shankar Das v. Ram Tahal Koeri : AIR1927All605 and The Bharatpur State v. Secy. Of State (1918) 5 A.I.R. All. 154. The first two cases refer to municipal area and not to the notified area. The case of a Municipal area is different from that of a notified area. As laid down in Section 3, U.P. Municipalities Act, the local Government may by notification declare any local area to be a municipality. There is no such restriction as regards the declaration of any local area to be a municipality as is in the case of declaring a notified area. An agricultural village cannot be included in a notified area as laid down in Section 337, Sub-section (1), while any local area may be declared to be a municipality under Section 3, Clause (1)(a). In the third case, the proprietary rights over the soil of mauza Sakifcra in which the house in dispute was, had been conferred under the documents of 1850 A.D. on the plaintiff who claimed proprietary title in the site against the defendants. The proprietary rights were conferred by the Government itself. These cases are therefore distinguishable.
3. A similar view was taken in Behari Lal v. Sukhbir Singh : AIR1936All442 which was a case of land situated within the limits of a town area. The provisions of Section 3(2), U.P. Town Areas Act (2 of 1914) are similar to the provisions of Section 337, U.P. Municipalities Act. There it was held that in view of the provisions of Section 3(2), Town Areas Act, the presumption that the zamindar was the owner of every inch of the land did not apply to the land situated within the limits of a town area. It was observed:
The finding of the lower Appellate Court was that the three numbers were shown by the revenue records as being in the zamindari of the plaintiff but that the numbers were situated in the town areas of the town of Khatauli and therefore the presumption that the zamindar was the owner of every inch of land did not apply in the present case. Learned Counsel in appeal argued that the zamindar of an agricultural village was entitled to the zamindari rights of proprietorship in all these plots the first place we consider that the finding of fact of the lower Appellate Court is conclusive. In the next place we would refer to the provisions of U.P. Act 2 of 1914, the Town Areas Act, Section 3, Sub-sections (1) and (2). It Is there laid down that in makings notification, the local Government should not declare an agricultural village to be a town area or to be included within the limits of a town area and further 'the decision of the Local Government that any inhabited area is not an agricultural village within the moaning of the proviso to Sub-section (1) of this section shall be final and conclusive and the publication in the Gazette of a notification declaring such area to be a town area or within the limits of a town area shall be conclusive proof of such decision.' Although the lower Appellate Court did not refer to this provision it is clear that it acted on the principle of this provision and we consider that the lower Appellate Court was correct.
4. It is therefore ordered that the appeal be allowed with costs, the decree of the lower Court be set aside and the plaintiff's suit be dismissed. Permission for Letters Patent appeal is refused.