RAM SEWAK Vs. JAGDISH ETC.

JUDGEMENT

(1.) THIS second appeal has been filed against an order passed by Additional Commissioner (Administration) Jhansi Division on 15-9-98 in first Appeal No. 36/5 of 1998 arising out of the order passed by S.D.O. Mauranipur dated 12-1-1998 in Suit No. 31/97-98 under Section 229-B/122-B (4-F) of the U.P.Z.A. and L.R. Act.

(2.) BRIEF facts of the case are that respondents Jagdish, Jasso and Shobha Ram filed a suit under Section 229-B/(4-F) of the U.P.Z.A. and L.R. Act before the S.D.O. on 21-7-97 claiming that they were in possession of the plots in dispute from before June, 1985, and belonged to Scheduled Caste, therefore, they should be declared bhumidhar with non transferable rights of the plots in dispute. It was also stated in a separate application under Section 80 C.P.C. dated 21-7-97 that the legal requirements of giving notice to the State under Section 80 C.P.C. and to the Gaon Sabha under Section 106 of the U.P. Panchayat Raj Act the dispensed with because if they wait for the required period before the suit can be filed after giving notices, the purpose of filing suit will be frustrated. Alongwith application the copy of the resolution of L.M.C. Bagrauni purported to have been adopted on 17-5-96 was also filed wherein it has been resolved that the plots in dispute should be allotted to the plaintiff respondents for agricultural purposes. Also extract of Khatauni 1397F to 1402F and 1403F to 1408-F alongwith khasra 1404-F, 1403F to 1408F was filed. The S.D.O. decreed the suit and declared the plaintiff-respondents as bhumidhar or the said plots under Section 122-B(4-F) by order dated 21-8-97. Subsequently a review application was moved on behalf of the appellants on the ground that the plaintiffs were not in possession of the plots in dispute on the contrary the applications were in possession of the land from before June 1995. The Learned S.D.O. after considering the arguments of both the parties recalled the earlier order and passed a new order dated 12-1-98 and rejected the claim of the plaintiffs. Aggrieved by this order the plaintiff filed appeal before the learned Divisional Commissioner which was decided by the impugned order passed by the learned Additional Commissioner whereby he partly allowed the appeal on the ground that barring those members which fell under the category of the land covered by Section 132 of the U.P.Z.A. and L.R. Act rest be settled in the name of the appellants respondents under Section 122-B (4-F) of the U.P.Z.A. and L.R. Act. The instant second appeal has been filed against this order.

(3.) FROM perusal of the impugned order as well as the extract khatauni and khasra it is clear that the Plot Nos. 505 and 73 were recorded in the khatauni as Deo Asthan and Harijan Abadi respectively. Therefore the land apparently was covered by Section 132 of the U.P. Z.A. and L.R. Act falling under the category of public utility land. So the same could not have been settled in the name of the plaintiff-respondents. The learned Commissioner instead of remanding the case back to the trial Court for fresh inquiry and passing the order afresh partly decreed the suit itself without ascertaining the factum of possession of the plaintiff-appellants from the file of the trial Court as well as appellate Court it is evident that the concerned Lekhpal was not examined nor any spot inspection was carriedout to ascertain the possession of the plaintiff-appellants and on the basis of oral evidence of Gram Pradhan and two other persons, allowed the appeals whereas on the file of the trial Court there are affidavits of atleast five villagers controverting the claim of the plaintiff-appellants and a joint application of atleast twenty villagers to that effect. The learned appellate Court did not deal with the material pieces of evidence. The appellants before this Court has stated that more than 40 persons belonging to Scheduled Caste have constructed houses on the plots in dispute and Plot No. 587 is also recorded as Pokhar in the Khasra of 1405F. It is also an admitted fact that the appellants are also persons of Scheduled Caste and Scheduled Tribe. In the circumstances I feel it necessary in the interest of justice that the matter be looked into again afresh by the competent authorities and appropriate orders be passed as per the provisions of law after making spot inspections and examinig all relevant evidence record and giving full oppportunity of hearing to the contesting parties.