BAIJ NATH Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and order dated 29-2-92 passed by learned Additional Commissioner, Varanasi in Appeal No. 13/100 of 90 Bhadohi. By the impugned order the learned Additional Commissioner dismissed the appeal and maintained the order dated 31-1-90 passed by the trial Court in case No. 515/80 under Section229-B of the U.P.Z.A. and L.R. Act.

(2.) BRIEFLY the facts of the case are that Baijnath instituted a suit for declaration of his rights as bhwnidhar of the land in dis­pute. In para 3 of the plaint he specifically alleged that 14 mango trees, one Mahuwa, 8 Guawava trees, two plumbed trees and two jackfruit trees existed on the land in dispute and that the plaintiff continued to be in possession from before 30 years. The suit was instituted on 10-3-80 and hence the plaintiff claimed to be in possession from before 1950. the trial Court found that the plaintiff was not a Harijan and was not entitled to get the benefit of Section 122-B(4-F) of the U.PZ. A and L.R. Act and dismissed the suit, The learned Additional Commissioner agreed with the trial Court and dismissed the appeal. Hence the present second appeal.

(3.) APERUSAL of the record reveals that the learned Court of first instance travelled beyond the pleadings of the par­ties and carved out as new case which did not arise from the averments contained in the plaint. The main plea set up by the plaintiff was that he continued to be in possession from before the date of vesting and acquired rights by operation of law. This vital issue has been omitted from being considered by the trial Court as well as by the Court of first appeal. The learned Courts below have been misread by the presumption that the plaintiff claimed rights on the basis of protection conferred by Section 122-B (4-F) of the U.PZ.A. and L.R. Act. Their approach was entirely mis­conceived. In these circumstances it neces­sary in the interest of justice and fairness to remand the case back to the trial Court for fresh decision. As the case is being remanded the trial Court will give further opportunity of adducing evidence to the parties.