BUDHUWA Vs. GAON SABHA

JUDGEMENT

(1.) THIS second appeal has been filed by Budhuwa against the judgment and decree dated 15-3-94 passed by learned Additional Commis­sioner, Jhansi in Appeal No. 13/80 of 1992-93 Budhuwa v. Gaon Sabha and Appeal No. 78/67 of 1991-92 State of U.P. v. Bud­huwa, arising out of a suit No. 8 of 89 under Section 229-B of the UPZAand LR Act.

(2.) BRIEFLY the facts of the case are that Budhuwa instituted a suit for declaration that he had become bhumidhar with non transferable rights of plot No. 313 area 2.53 acres on account of his being a persons belonging to Scheduled Casteand by being in possession from before 30-6-85. The suit was contested by Gaon Sabha on the ground that the land in suit was land of public utility and reserved for Khaliyan. It was also submitted that case No. 24 of 1 987 Gaon Sabha v. Budhuwa under Section 122- B/115-C of the UPZA and LR Act/Rules had been instituted in which Budhuwa had been ordered be ejected on 5-3-87 and hence he could not be deemed to be in possession from before 30-6-85. The trial Court after considering the material no record decreed the suit for an area of 0.618 hectare and declared the plaintiff to be bhumidhar with non trans­ferable rights of this land. For the remain­ing area the trial Court dismissed the suit of the plaintiff. Against this order Appeal No. 13/80 of 92-93 had been filed by Bud­huwa and Appeal No. 78/67 of 91.92 had been filed by the State. The learned Addi­tional Commissioner dismissed the appeal of Budhuvva and allowed the appeal of State. As a result of this order the suit of the plaintiff stood dismissed in its entirely. Budhuwa has now come up in second ap­peal.

(3.) FROM a perusal of the record it is obvious that in proceedings under Section 122-B/115-C of the.UPZA and LR Act/Rules which were initialed in the year 1986 Budhuwa had been ordered to be ejected. Budhuwa did not adduce any evidence worth the name to establish that the continued to be in possession over the land in question from before 30-6-85 inspite of the order dated 5-3-87. The learned Additional Commissioner after considering the material on record came to a finding of fact that plaintiff did not continue to be in possession over the land in question from before 30-6-85 and hence he could not be get the benefit of Section 122-B (4-F) of the UPZA and LR Act. The trial Court was incorrect in decreeing the suit of the plaintiff for a portion of the land. So far as the order of the trial Court dismissing the suit of the plaintiff for the remaining portion of the land is concerned it is 'based on a consideration of the evidence on record and findings of the two Courts below in respect of this area is not liable to be disturbed in second appeal. The order passed by the learned Addition­al Commissioner does not call for any in­terference.