RAM RATAN Vs. K.D.A.

JUDGEMENT

(1.) RAM Ratan Singh and others have filed this second appeal against the judgment and decree passed by Commissioner, Kanpur Division, dated 14-8-2002.

(2.) BRIEFLY the facts of the case are that plaintiff-respondent filed a suit under Section 229-B of the UPZA and LR Act before the trial Court. The plaintiff-respondent very categorically stated in his plaint that the land in dispute is recorded in the name of State Government and after the vesting it was recorded in the name of Gaon-Sabha and after that when the area of Nagar Mahapalika was extended it was recorded in the name of the Nagar Mahapalika and subsequently it was vested in kanpur Development authority. The learned trial Court on too technical grounds dismissed the suit of plaintiff-respondent on the ground that the plaint is not certified by the competent officer and notice under Section 80 CPC was not given. Against this order of the trial Court Kanpur Development Authority preferred an appeal before the learned Commissioner, Kanpur and learned Commissioner after hearing both the parties and evaluating oral as well as documentary evidence allowed the appeal and set aside the judgment and decree passed by the trial Court. The learned Commissioner has very categorically mentioned in his judgment that in the year 1954 Naib Tahsildar was not competent to pass mutation order in any body's favour. On this ground the entry on the basis of the mutation order dated 21-4-54 passed by Naib Tahsildar in case No. 604 regarding plot No. 551 area 3-10-0, plot No. 574 area 0-15 and plot No. 605 area 2-10-0 treating it as a fictitious entry because in 1359 Fasli the land in dispute is recorded in category (4) which is Banjar or not fit for agricultural purposes. In the year 1360 Fasli no body's name is recorded. On these grounds the learned Commissioner held that the entry on the basis of Naib Tahsildar's order in favour of the appellant is fictitious and on the basis no right can be given. As regards the issuance of notice under Section 80 CPC these are technical points and on technical grounds appeal or the plaint should not be rejected.

(3.) THE finding given by the learned Commissioner Kanpur Division, is nearer to the truth because in 1359 Fasli land is recorded in the category of Banjor and Usar. Thus nobody can perfect his right on the basis of adverse possession on any entry unless that entry is made on the basis of the order passed by some competent revenue officer. Naib Tahsildar is not competent to pass such mutation orders on Gaon-Sabha land. As regards the issuance of notice under Section 80CPC is a technical ground and the learned Commissioner has very rightly held that the suit cannot be rejected on this ground. I find no illegality or any material irregularity in the judgment of the learned Commissioner Kanpur Division.