MANGAL Vs. PREM LAL

JUDGEMENT

(1.) THIS is a second appeal under Section 331 (4) of the U.P.Z.A. and L.R. Act (here in after referred to as the Act), preferred by the plaintiff, Mangal against the judgment and decree dated "2-6-1 995/1 1-7-1995 passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 43/97 of 1993-94/Lalitpur, arising out of the judgment and decree, dated 15-2-1994, passed by the learned trial Court, in suit No.32 of 1992-93 under Sect ion 229-B/209 of the Act.

(2.) BRIEFLY stated, the facts giving rise to the instant second appeal arc that Man-gal, plaintiff instituted a suit under Sec­tions 229-B/209 of the Act for declaration of his rights over the land, in dispute as bhumidhar with transferable rights, as the father of the defendants 3 to 5, Durga had no concern with the land in dispute and the entry of Class 9 made in his favour, is against rules which should be expugned. Notices were issued to the defendants 1 to 5. Defendants 1 and 2 did not contest the case while the defendants 3 to 5 contested the suit by filing their written statement. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff and ordered for execution of the entry of class-9, made in favour of Durga, the father of defendants 3 to 5 on 15-2-1994. Aggrieved by this order, an appeal was preferred. The learned Additional Commissioner by his order dated 22-6-1995, allowed the appeal. It is against this order and decree that this second appeal has been preferred by the plaintiff before the Board.

(3.) I have closely and carefully con­sidered the contentions, raised by the learned Counsel for the parties and have also gone through the relevant records, on file. A bare perusal of the record clearly reveals that on the pleadings of the parties, the learned trial Court has framed seven issues including issue No. 1 to the effect whether the plaintiff is Bhumidhar with transferable rights in possession of the land in dispute and issue No. 2 to the effect whether the entry in class-9 is irregular. After thoroughly and analytically discussing these issues, the learned trial Court came to the conclusion that the procedure laid down for issuance of PA-l0 and making the entry in class-9 have not been legally followed and the defendant could not adduce any docu­ment or evidence which may go to prove their cultivatary possession over the land in dispute in 1372-E Since the defendants failed to establish their possession year after year on the land, in dispute, no rights could accrue to them under Section 210 of the Act. It also concluded that since the provisions of para A-80, A-81, A-82 and A-102-C of the Land Records Manual were not followed, the entry of class-9 made in favour of Durga, father of the defendants 3 to 5 is irregular and as such it decreed the suit of the plaintiff. On the contrary, the learned Additional Commis­sioner did not address himself towards the findings, recorded by the learned trial Court, on the point of issuance of PA-10 and year to year possession of the defen­dants over the land, in dispute. He simply allowed the appeal on the basis of the entry in class-9, being 27 years old. The learned lower appellate Court ought to have analysed, discussed and considered as to whether this entry in class-9 is regular or not and made after following the proce­dure prescribed by law for the same. So for as the issuance of PA-10 is concerned, it admitted that there is a lot of irregularities in the issuance of PA-10 but it brushed aside these facts, simply saying that it is wrong to say after 27 years that service of PA-10 was not effected on the plaintiff or his ancestors and came to the conclusion that the decree passed by the learned trial Court was not justified and is liable to be annulled and as such allowed the appeal. In respect of onus of proving service of PA-10 on the plaintiff, it did not say anything.