KESHAV PRASAD Vs. SANTOSH KUMAR

JUDGEMENT

(1.) THESE are four second appeals filed against the judgment and decree dated 11-12-98 passed by learned Additional Commissioner, Jhansi, in Appeal Nos. 19/26 of 1993-94, 29/37/24 of 1993-94. Appeal Nos. 12 and 13 have been filed by Keshav Prasad son of Din Dayal against the defendants including other plaintiffs as proforma respondents. Appeal Nos. 16 and 17 have been filed by Indrapal and others against the defendants impleading Keshav Prasad son of Deen Dayal as proforma respondents. By the impugned order the learned Additional Commissioner allowed the appeal, set aside the judgment and decrees of the trial Court dated 21-2-1994 and declared Santosh Kumar as the sole bhumidhar of plot No. 378 Ka area 6 Bigha. This order was passed in appeal Nos. 19/26 and a copy of this order was placed in appeal No. 29./37/25 of 1993-94 district Banda.

(2.) BRIEFLY the facts of the case are that Rameshwar (since deceased and substituted by Indrapal, Chotey Lal and Kedarnath) and others instituted a suit No. 232 under Section 229-B of the UPZA and LR Act for the declaration that the plaintiffs were contents of plot No. 378 area 6 Bigha alongwith the defendant Nos. 1 to 6. They pleaded that the land in suit belong to the common ancestor in 1314 Fasli, that by inadvertent mistake of Lekhpal the area of plot was shown only as 1.14.0 and an area of 6.6.0 was omitted from being recorded in the names of the parties. They claimed to have been continuing in possession alongwith the defendants from the time of their fore father. Rajdhar and six others, who were arrayed as defendants in suit No. 232 instituted a Suit No. 12 against Indrapal and others seeking for the declaration that they were the exclusine bhumidhar of plot No. 378 area 6 bigha. They pleaded that the area of 6 bighas was sole acquisition of Sheodhani and belonged to them exclusively. The trial Court framed issues and gave both the parties full opportunity of adducing evidence and of being heard. It found that the land belonged to common ancestor in 1314 Fasli and that there was some interpolation during the period 1356F and 1359F and the area of 6 bighas was wrongly recorded in the name of Sheodhani alone. It decreed the suit of Indrapal and others and declared them to be co-bhumidhars of the land in question alongwith the defendant. The other suit filed by Rajdhar and others was dismissed. Feeling aggrieved by this order Santosh Kumar filed two first appeals before the learned Additional Commissioner. The learned Additional Commissioner allowed the appeals and reversed the order of the trial Court thereby dismissing the suit of Indrapal and others and decreed the suit of Rajdhar and others. Feeling aggrieved by this order Indrapal and others have filed four second appeals before this Court.

(3.) THE controversy involved in the present appeals is whether the area of 6 bighas of plot No. 378 belong to the plaintiffs as well as to the defendants or whether this area belongs exclusively to the defendants. A perusal of the record reveals that in 1314 Fasli the old numbers of plot Nos. of 378 were plot Nos. 220, 221 and 222 with an area of 13.14.0. In Khatauni 1362 Fasli plot No. 378 area 7.14-0 is recorded in the nam of Sheodhani and others. In 1383 Fasli and 1394 Fasli this much ara of plot is recorded in the names of both the parties. In 1356 Fasli and 1359 Fasli an area of 6 bighas of plot No. 378 was recorded in the name of Sheodhari alone. Indrapal and others produced Weeder Revenue Records Room Banda. He brought the original Khatauni of 1356 Fasli and 1359 Fasli in original before the Court. In 1356 Fasli from Khatas Nos. 86 and in 1359 Fasli from Khata Nos. 85 plot No. 378 Ka area of 6 Bighas came to be recorded in the name of Sheodhari son of Prem Narain. The Weeder stated in cross-examination that the paper showing Khatas Nos. 86 and 85 was very thin. It meant that the entry which existed there from before had been erased and some interpolation had been made. It also came to the notice of the trial Court that the ink showing the name of Sheodhari was different from other entries. The trial Court after considering the documentary and oral evidence on record arrived at the conclusion that the name of Sheodhani had been interpolated in years 1356 Fasli and 1359 Fasli. The learned Additional Commissioner has not read this important piece of evidence in its right perspective. He erred in assuming that the plaintiffs Indrapal had failed to prove their case. He also erred in presuming the possession of Sheodhani from the year 1356 Fasli till date on the basis of irrigation slips whereas the land in question had been recorded as Matrook for a period of about 20 years. When the very initiation of the entry in the name of Sheodhani in the year 1356 Fasli was showed with doubt and the land had been shown as Matrook for a period of twenty years how could the learned Additional Commissioner presumed that the only branch of Sheodhani continued to be in exclusive possession over the land in question.