PHOOL CHAND Vs. RAM SINGH

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree dated 31-1-1998 passed by learned Additional Commissioner, Jhashi in First Appeal No. 137/380/47 of 1993 arising out of an order passed by Additional S.D.O. Lalitpur in a declaratory Suit No. 104/89-90 under Section 229-B of the U.P.Z.A. and L.R. Act passed on 29-4-1993. By the impugned order the learned First Appellate Court has reversed the findings and judgment of the trial Court and has allowed the appeal.

(2.) BRIEF facts of the case are that Ajodhya filed a declaratory suit before A.S.D.O. Lalitpur claiming that he is recorded tenant of the property in dispute but in Part II of the khatauni the name of defendant Halke has been wrongly recorded in verg 9 without issuing any P.A. 10 or P.A. 24 therefore, he should be declared bhumidhar of the property and the name of the defendant No. 1 Halke be struck down. In support of his claim in filed copy of Khatauni 1372-1374-F and copies of Khasra 1383 to 1394-F. The suit was contested by the defendant on the ground that his name was recorded in category 9 after duly issuing P.A. 10 and P.A. 24 as per procedure laid down by law and that he has been in continuous possession over the land for the last 12 years and has been cultivating the same. The learned trial Court decreed the suit in favour of the plaintiff and ordered expunction of the name of the defendant Halke from Part I of the Khatauni. Aggrieved by this order first appeal was preferred before the Divisional Commissioner Jhansi which was transferred for disposal to the Court of Additional Commissioner (Judicial) Jhansi who by the impugned order dated 31-1-1998 allowed and reversed the findings and decree of the trial Court placing reliance on the copies of the documents and interpreting that the appellant and his father have been in continous possession over the disputed plots for the last 12 years and that in absence of any contrary evidence it will be presumed that P.A. 10 and P.A. 24 were duly issued and served on Ajodhya since it contains an order of the concerned S.K. in the khatuani of 1372 to 1374-F wherin it has been stated that on the basis of P.A. 10 serial 9 dated 10-10-1964 the name of Halke son of Sukh Lal is recorded by order of S.K.

(3.) COPIES opf khatauni 1372-1374-F and copies of khasras from 1383 to 1394-F are on file. There is no specific evidence oral as well as documentary as to whether P.A. 10 and P.A. 24 were served on the recorded tenure holder or not. From perusal of the copies of khasra, it is clear that no crop has been recorded in kharif and Jayed in 1383-F, in jayed in 1384-F in Ravi and jayed in 1385-F, in Jayed and Rabi in 1386-F, In Rabi and Jayed in 1387-F and Ravi and Jayed in 1388-F in Rabi and Jayed in 1389-F. In the entire year of 1390-F, in Kharif and Jayed of 1391-F in Rabi and Jayed in 1392 -F in Kharif and Rabi and Jayed in 1393-F in relation to Plot No. 1045 and Kharif and Jayed in relation to Plot No. 1044 and in Kharif, Rabi and Jayed of 1394-F in relation to Plot No. 1045, Kharif and Jayed in 1394-F in relation to Plot No. 1044. Whereas the learned first appellate Court has categorically stated that the appellant's father and later his sons have been in continous possession by way of cultivation of the disputed plots. Thus the finding of the first appellate Court are based on misreading and mis calculation of the documentary evidence. The first appellate Court should have been extra cautious and carefull and should have adopted thorough judicial approach while reversing the judgment of the trial Court specially when it was based on the conflicting interpretation of the documentary evidence. The order passed by the first appellate Court deserves to be interfered with, which is here by set aside.