RAM SAJIWAN Vs. BANS GOPAL

JUDGEMENT

(1.) THIS is a second appeal under Section 331(4) of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 4-12-1989, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 121/261 of 1987-88/Banda, allowing the same and reversing the judgment and decree, dated 21-8-1988, passed by the learned trial Court in suit No. 105 under Section 229-B of the Act.

(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Ram Sajiwan instituted a suit under Section 229-B of the Act for declaration of his rights as bhumidhar over the land in dispute, on the basis of perfection of his rights by adverse possession, praying for the expunction of the name of the recorded tenure-holder, Bans Gopal as well. On notice, the defendants contested the suit, denying the allegations as well as possession of the plaintiff and catagorising the entry in varg-9 in his favour as fictitious and farzi, while the Gaon Sabha and the State did not contest the suit. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff vide its judgment and decree, dated 21-8-1988. The defendant, Bans Gopal etc. went up in appeal before the learned Additional Commissioner, who has allowed the same, vide his judgment and decree, dated 4-12-1989 and therefore, it is against the judgment and decree that the instant second appeal has been preferred by the plaintiff, Ram Sajiwan before the Board.

(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record on file. The substantial question of law, involved in the instant appeal, on the pleadings of the parties concerned, is whether or not the findings, recorded by the learned Court below have been arrived at after due and proper appreciation of evidence, both oral as well as documentary, on record in correct perspective of law. As a matter of facts, the learned trial Court decreed the suit of the plaintiff on the basis of its view that the entry of varg-9, in favour of the plaintiff have been made. in accordance with the rules, on the subject, maturing his rights and title on the land, in dispute, by prescription of law, while the learned Additional Commissioner, has reversed the findings on the basis of the possession of the plaintiff, being interrupted and not continuous. For such a reversal, due and proper appreciation of evidence, both oral as well as documentary, on record ought to have been considered in an analytical and logical manner, in correct perspective of law, which is badly lacking on the part of the learned Additional Commissioner. For maturing the rights by prescription of law, the possession should be continuous, hostile and uninterrupted and a positive finding in this respect is necessary. The learned Court of first appeal has, in fact, failed to do so and therefore, without commenting upon the merits of the case, I, in the facts and circumstances of the instant case as well as evidence on record, am of the considered opinion that this is rather a fit case for remand to the learned Additional Commissioner, for decision afresh, on merits, according to law, after affording due and proper opportunity of being heard to the parties, concerned.