SUSHILA DEVI Vs. NASIR

JUDGEMENT

(1.) <DJG>S .P.PANDEY, J.</DJG> This is a reference, dated 31-5-1997 made by the learned Additional Commissioner, Jhansi Division, Jhansi, in respect of the Revision Petition No. 30/1 of 1994-95/Jalaun, Smt. Sushila Devi v. Nasir etc., recommending that the revision petition be allowed, the order, dated 26-9-1995, passed by the learned trial Court, in suit under Section 229-B of the UPZA and LR Act (hereinafter referred to as the Act), be set aside and the suit of the plaintiff be dismissed, as barred under Section 49 of the UPCH Act.

(2.) BRIEFLY stated, the facts, giving rise to the instant reference are that the plaintiff, Nasir instituted a suit under Section 229-B of the Act for declaration of his rights as bhumidhar of the land, in dispute, inter alia, pleading that since that defendant has nothing to do with it, his name be expunged from the revenue records. On notice, the suit was contested by the defendants, denying the allegations and inter alia pleading that the same is barred by Section 49 of the UPCH Act as well as by limitation. Issues were framed by the learned trial Court and on the application, dated 24-9-1995, moved by the defendant, praying for the decision of issue Nos. 5 and 14 as preliminary issues, the learned trial Court, vide its order, dated 26-9-1995, came to the conclusion that in the interest of justice, the same need be decided along with other issues on merits, after hearing the parties, concerned and evaluating the evidence, if any and therefore, it is against this order that Smt. Sushila Devi went up in revision before the learned Additional Commissioner, who has made this reference to the Board with his aforesaid recommendation.

(3.) I have closely and carefully considered the arguments advanced before me by the learned Counsel for the parties and have also scanned the relevant record, on file. As a matter of fact, the fathers of the plaintiff and defendant, Matroo and Khuda Bakhs, respectively, were real brothers. The contention of the plaintiff is that the defendant obtained the decree, dated 5-10-1963 by playing frayed upon the Court, on the basis of which during the consolidation operations, chaks were carved out, although possession remained with the plaintiffs father upon his own share of the land, in dispute. Thereafter, on the basis of the farzi sale-deed executed by the defendant in favour of the revisionist, she got her name fraudulently recorded over the share of the plaintiff and when the vendee tried to take forcible possession thereof, the plaintiff came to know of the state of affairs and the cause of action arose. The learned trial Court has emphatically observed that in the earlier suit, no summonses were served upon Matroo, the father of the plaintiff, no Iqbaldawa had been filed by him nor had any vakalatnama been filed on his behalf and apparently, it appears that the same has been got done by planting some impostor. Issue of bar under Section 49 of the UPCH Act, in such state of affairs, has rather very rightly been postponed by the learned trial Court to be decided later on alongwith other issues on merits after hearing the parties, concerned and evaluating the evidence, if any. The learned Additional Commissioner appears to have swayed away on flimsy grounds in observing that it cannot be believed that for 27 years, the plaintiff could not know of the decree, obtained by the defendant and wrongly recommending that the suit of the plaintiff is barred by Section 49 of the UPCH Act. The decree, dated 5-10-1963 has been alleged to have been obtained by playing fraud upon the Court and therefore, the learned trial Court was perfectly justified in to decide issue Nos. 5 and 14 along with other issues on merits, after hearing the parties, concerned and due and proper appreciation of evidence, if any, on record and therefore, I in the facts and circumstances of the instant case, am fully convinced that the recommendation, made by the learned Additional Commissioner very richly deserves rejection, outright. Since the suit is still pending, I see no harm if issue Nos. 5 and 14 are also decided along with other issues, on merits and as such, the revision petition very richly deserves dismissal, outright.