SHEO PAL Vs. LALJI

JUDGEMENT

(1.) THIS appeal has been filed by Sheopal against the judg­ment and decree dated 12-9-94 passed by learned Additional Commissioner, Jhansi in appeal No. 206/55 of 90-91 Banda. By the impugned order the learned Addition­al Commissioner dismissed the appeal and maintained the order of the trial Court dated 6-6-91 passed in suit No. 161 under Section 229-B of the UPZA and LR Act.

(2.) BRIEFLY the facts of the case are that Lalji instituted a suit for declaration of his right. He submitted that the name of his father was wrongly recorded in Ziman 9 by the Lekhpal whereas he was the real bhumidhar and in possession of the land in suit. He also claimed to have matured rights by being in adverse possession for a statutory period. The plaintiff prayed that he alongwith the defendants Nos. 3 to 8 be declared as bhumidhar with transferable rights over the land in question. Defendant No. 1, Sheopal, contested the suit on the ground that the land in question had been sold in auction proceedings as the plaintiff and Roshan Prasad who were tenant of the land in question had taken loan from the Bank and could not re-pay that and the land was put to auction and was purchased by the defendant No. 11/present appellant on 24-8-85. It was stated that Dakhal had been delivered to him and the plaintiff or any other defendant had no concern with the land in question. The trial Court decreed the suit of the plaintiff on the ground that he was bhumidhar of the land in question and the auction in favour of the defendant No. 1 I/the present appellant was not valid. Being aggrieved by this order Sheo Pal filed an appeal before the learned Additional Commissioner which too was dismissed. He has now come up in second appeal.

(3.) A perusal of the record reveals that Bansh Gopal, the predecessor-in-interest of Lalji and Roshan Prasad had taken loan from Bank and the land in question was put to action and had been purchased by Sheo Pal the present appellant. The predecessor-in-interest of the plaintiff and defendant No. 1 did not take any step to get the auction sale nullified or declared void. In the eye of law the right of the predecessor-in-interest of Lalji and Roshan Prasad would cease to exist on the date on which the land in question was put to auction. It did not lie in the mouth of the present respondent Nos. 1 and 2 to say that all action of the Bank as well as of the authorities who conducted the auction proceedings was fraudulent or/era. It was for the plaintiff establish that he continued to hold the land even after the date of the auction sale. The sale certificate was issued. The name of Sheopal the present appel­lant was recorded as bhumidhar in the khatauni. As the proceedings for auction were not declared as void or illegal by any competent authority, the legal conse­quence would be that the right of Lalji and Roshan Prasad became extinct. The suit was filed in the year 1988. It would therefore, not be presumed that the plaintiff acquired rights by prescription by being in continuous possession for over 12 years. The learned Courts below have failed to appreciate the evidence on record properly and their judgment are vitiated in law.