KISAN SAHAKARI SAMITI LTD. Vs. STATE

JUDGEMENT

(1.) THIS is a second appeal under Section 331 (4) of the UPZA and LR Act (here in after referred to as the Act), preferred against the judgment an order, dated 22-6- 1999, passed by the learned Additional Commissioner, Moradabad Division, Moradabad, in ap­peal No. 39 of 1998-99, dismissing the appeal and confirming the judgment and order, dated 4-2-1998, passed by the learned trial Court, in suit No. 1 of 1990, refusing to recall the ex pane order, dated 29-1-1990, passed in the aforesaid suit under Section 1 86/1 87 of the Act .

(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that the State of U.P. through the District Hor­ticultural Officer, Moradabad moved an application stating that the land in dis­pute, detailed in scheduled-Kha, is recorded as bhumidhari in Class- 1 (A), in the name of Kisan Sahkari Samiti, Trilok-pur, District Moradabad, the defendant whereas there is no such Samiti of this name for the last 15 years;that the aforesaid Samiti is also not in possession of the land in dispute;that the land, in dispute, lies in the bed of river and so, by and large, it remains inundated due to fluvial and alluvial activity of the river and praying that the land in dispute, being abandoned, under Section 186 of the Act, the name of the aforesaid Samiti be ex-pugned from the revenue records. Notice was issued to the defendant but the aforesaid Samiti did not put in appearance before the Court, despite due notice. The learned trial Court, after completing the requisite formalities, ordered the land in dispute, being abandoned, to vest in the Gaon Sabha, concerned, as Banjar in Class 5(1), expunging the name of the aforesaid Samiti from the revenue records. There ­after, on 8-7-1997, the Kisan Sahkari Samiti moved an application, with the prayer that the cxpane order, dated 29-1-1990, be recalled and the case be res­tored. The learned trial Court rejected i his application on 4-2-98. Aggrieved by this order, an appeal was preferred. The learned Additional Commissioner dis­missed this appeal and confirmed the im­pugned order, passed by the learned trial Court. It is against this order that the in­stant second appeal has been preferred before the Board.

(3.) I have closely and carefully con­sidered the contentions raised by the learned Counsel for the appellant as well as the learned DGC (R) and have also gone through the relevant records on file. A bare perusal of the record clearly reveals that the land in dispute is recorded in Class-6 (1) and 6 (4) of the Khatauni 1395-1400F. A part of the land, in dispute, remains inundated due to fluvial and al­luvial activities of the river, since the same lies in the bed of the river. In the Khatauni 1373-75F, the land, in dispute, is recorded as Banjar, in Class 5 (1). The then SDO, concerned, ordered on 4-5-1966 that the land, in dispute, be recorded in the name of Kisan Sahkari Samiti, as Sirdar. In the same Khatauni, there is an order, staying the aforesaid order, dated 4-5-66. In the Khatauni 1376-78F, the Lekhpal, con­cerned ignored this stay order and recorded the name of the Samiti, as Sirdar. The learned trial Court is of the view that this entry is illegal, as there is no entry in respect of the vacation of the slay order. On I he basis of evidence, on record, it concluded that the land, in dispute, lies in the bed of river and is a property of the Gaon Sabha, concerned and, therefore, ordered that since the land in dispute, being abandoned, the name of the Kisan Sahkari Samiti be expugned and also or­dered ii to be recorded in Class 5 (1), in the name of the Gaon Sabha. On the restora-tion application, the learned Tchsildar, concerned came of the conclusion that the same was time-barred and that he had no jurisdiction to confer bhumidhari rights over a land, recorded in Class 5 (1) and as such, the restoration application was rejected. The learned Additional Commis­sioner, after analysing, discussing and con­sidering the entire facts and circumstances of the instant case, in correct perspective of law, concerned with the findings, recorded by the learned trial Court and dismissed the appeal.