ABDUL SALAM Vs. MOHD YASEAN

JUDGEMENT

(1.) M. Devraj, J. This second appeal has been filed against the judgment and decree dated 24-12-2001 passed by the Additional Commissioner, Judl. , Moradabad Division in appeal No. 22 of 99-2000, confirming the judgment and decree dated 30-11-99/6-12-99 passed by the SDO, Najibabad in suit No. 33/99, under Section 229-B, ZA & LR Act.

(2.) BRIEFLY stated the facts of the case are that Mohd. Yaseen and others filed a suit under Section 229-B, ZA & LR Act claiming bhumidhari over an area of 9-6-0 stating that though the area mentioned in the sale deed is 5-6-0 but actually as per the boundaries/mentioned in the sale deed it is 9-6-0. This case was contested by the defendants. The SDO framed 7 issues and decreed the suit of the plaintiffs on 30- 11-99. An appeal was filed against this order of the SDO in which the Additional Commissioner, Judl. Moradabad Division has dismissed the appeal vide the order dated 24-12-2001. Hence, this second appeal.

(3.) ON the other hand, the Counsel for the respondents argued that by mistake the area has wrongly been mentioned in the sale deed executed in favour of them, whereas the boundaries have clearly been mentioned and the report of vakil commissioner was also sought by the trial Court. The Lekhpal of the area has also recorded his statement before the trial Court and all of these show to prove that the plaintiffs are in possession of 9-6-0 area and the sale deed actually meant this much only. Accordingly, both the Courts below have come to concurrent findings; he also argued that as far as survey map is concerned, the appellants neither pleaded in written statement filed before the trial Court nor has raised in the memo of appeal hence, he cannot raise it for the first time during the course of argument before this Hon'ble Court. He drew my attention towards 1997 AIR 50, 1998 RD 128 and 1971 AIR 74. He stressed the point that when there is difference between the area and boundary then the boundary would prevail over area. In reply, the Counsel for the appellant argued that the case laws quoted by the Counsel for the respondents are not relevant to the present case; as in the instant suit the land involved is not abadi but is agricultural for which settlement records and khatuni showing specific area are available; he further argued that Section 91 of Indian Evidence Act provides that the respondents should prove their case on the basis of documents which they have failed to do.