KARAN SINGH Vs. SONPAL

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree, dated 31-5-1995, passed by the learned Additional Commissioner, Moradabad Division, Moradabad, in Appeal No. 1 of 1994-95, arising out of the judgment and decree, dated 29-6-1993, passed by the learned trial Court, in Suit No. 81 of 1992-93 under Section 229-B of the UPZA & LR Act (hereinafter referred to as the Act), thereby allowing the appeal and setting aside the judgment and decree, passed by the learned trial Court.

(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiffs, Sonpal etc. instituted a suit under Section 229-B of the Act against the defendant, Waqf Alal Aulad etc., for declaration of their rights, as bhumidhar, with transferable rights, over the land, in dispute, as detailed at the foot of the plaint, on the basis of their adverse possession over the land, in suit. It was, inter-alia, pleaded that the Defendant No. 1 has no concern with the land in dispute, as the MUTWALLI, Sahabzada Murtaza Ali Khan resided at Rampur. The cause of action arose when the plaintiffs came to know that the name of the Defendant No. 1 continues to be fictitiously recorded in the revenue records as bhumidhar with transferable rights, over the land, in dispute. On notice, the State of U.P. contested the suit by filing its written statement, dated 26-3-1992. Other defendants did not contest the suit of the plaintiff. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, vide its order, dated 29-6-1993. Aggrieved by this judgment and decree, the plaintiffs went up in appeal. The learned Additional Commissioner, vide his judgment and decree, dated 31-5-1995, allowed the appeal and set aside the judgment and decree, passed by the learned trial Court, declaring the plaintiffs as bhumidhar, with transferable rights, over the land , in dispute. It is against this judgment and decree passed by the learned Additional Commissioner that the instant second appeal has been preferred by Karan Singh before the Board.

(3.) I have closely and carefully considered the submissions, made before me 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 claim of the plaintiffs is based on their adverse possession over the land in dispute. It was pleaded by them that the Defendant No. 1 is not in actual physical possession of the land, in dispute, as its MUTWALLI, Sahabzada Murtaza Ali Khan resided at Rampur for the last over 12 years; that the Defendant No. 1 has no concern with the land in dispute and that its name is fictitiously recorded in the revenue records as bhumidhar. Only the State of U.P. came forward to contest the suit of the plaintiffs, whereas the Defendant No. 1 did not appear before the Court to contest the case both before the trial Court as well as the learned lower appellate Court. On the pleadings of the parties, the learned trial Court framed 8 issues, including the Issue No. 1, to the effect whether the plaintiffs have matured their rights as bhumidhars, with transferable rights, over the land, in dispute, on basis of their adverse possession for more than the statutory period of 12 years. After discussing the matter, in question detail, the learned trial Court came to the conclusion that the plaintiffs have miserably failed to prove their adverse possession over the land, in dispute, for more than 12 years and, therefore, decided the Issue No. 1 in negative. It has been observed that had the plaintiffs been in adverse possession of the land in dispute, they would have certainly paid the land revenue. The receipt in this respect was not issued in their favour, but in the name of Defendant No. 1 which clearly shows that the land revenue was being paid by the Defendant No. 1. The oral evidence adduced by the plaintiffs also found to be contradictory and, therefore, (sic). The learned trial Court also held the suit in questions, as collusive, in order to evade the stamp duty. With the aforesaid findings, it did not agree with the pleadings of the plaintiffs and dismissed the suit vide its order, dated 29-6-1993. In appeal, the learned Additional Commissioner, on the contrary, did not discuss the aforesaid vital issues and abruptly came to the conclusion that the plaintiffs have matured their rights as bhumidhars, with transferable rights, over the land in dispute, on the basis of their adverse possession and allowed the appeal of the plaintiffs, decreeing the suit.