HANIF Vs. STATE

JUDGEMENT

(1.) THIS is a revision petition under Section 333 of the UPZA and LR Act ( here in after referred to as the Act) preferred against the order dated 23-9-1997 passed by the learned Ad­ditional Commissioner, Moradabad Division, Moradabad, arising out of an order dated 25-6-1996 and 3-7-1996 passed by the learned trial Court in a suit under Section 229-B of the Act.

(2.) BRIEF and relevant facts of the case are that one Habib, plaintiff instituted a suit under Section 229-B of the Act against the defendants Gaon Sabha and the State of U.P. with the allegation that the name of the plaintiff remained recorded in the revenue papers up to 1363-F as sirdar but with out ATany order of any competent authority, his name has been expunged. In 1992, to obtain a tractor loan, he contacted the lekhpal concerned for an extract of Khatauni and came to know about the fact that his aforesaid suit plots have been recorded as cultivable banjar in Class 5. It has been prayed that he be declared bhumidhar with transferable rights in pos­session over the land in suit as he is con­tinuing in possession over the same. The learned trial Court after completing the req­uisite trial has decreed the aforesaid suit on 25-6-1996. Aggrieved by this order, a revision was preferred. The learned Addi­tional Commissioner by means of his order dated 23-9-1997 has allowed the revision. Hence this second revision petition.

(3.) I have carefully and closely con­sidered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. On a close examination of the record, I find much force in the contentions raised by the learned Counsel for the revisionist. From a close perusal of the relevant records it is manifestly clear that Habib, father of the revisionist was in possession since before 1360-F in Class 2 as sirdar over the land in suit and this entry in revenue papers continued up to 1363-F. A perusal of the CH Form 41 reveals that, the aforesaid suit plots was recorded as banjar in 1384-F. There, is nothing on record to show that any proceeding was taken or any order was passed by any Court of competent jurisdiction or by the con­solidation authorities during the con­solidation operations in respect of the land in suit as per which the name of the revisionist has been expunged. The op­posite party has miserably failed to adduce any positive, convincing and cogent evidence to substantiate its claim over the disputed land. To establish its title and interest over the land in suit the opposite party must have shown the order as per which the name of the plaintiff-revisionist was expunged. No extract of Khatauni has been produced by the opposite party con­taining any amaldaramad of any order in­dicating the aforesaid facts. The aforesaid finding recorded by the learned lower revisional Court appears to be based on surmises and conjectures as the aforesaid entry made in favour of the opposite party in 1384-F appears to be fake fabricated and fraudulent. It is also worthwhile to men­tion here that the opposite party has not been able to adduce any evidence to the effect that there was any litigation between the parties during the consolidation operations and any notice was issued and served upon the plaintiff-revisionist. Having closely scrutinised the matter in question, I find that in the absence of any positive and convincing evidence, the aforesaid entry in CH Form 41 appears to be fake, fabricated and fraudulent and also with out ATany lawful basis. In the facts and circumstances of the instant case, the onus of leading positive evidence to show that any proceedings were taken in respect of the land in suit between the parties during the consolidation operations lay upon the opposite party.