MANRAJI Vs. BARKOO

JUDGEMENT

(1.) This is a second appeal against the order of the learned Additional Commissioner Varanasi Division dated 10-10-1973 allowing the appeal against the order of the learned trial court dated 12-3-73 in a suit under Sec. 209 of the UPZA & UR Act.

(2.) The case has a chequered history. The present appellant Mst. Manraji filed a suit under Sec. 209 of the Act on 17-3-1966 seeking ejectment of the respondents from the disputed plot. It was contended that Barku and others defendants have made unauthorised construction on the disputed plots. A prayer was made for their ejectment. The suit was contested and it was claimed that the plots constituted their old abadi. The case was decreed in favour of the appellant plaintiff Mst. Manraji on 24-9-1966. In appeal the learned Additional Commissioner by his order dated 12-4-1967 remanded the case for proceeding with it afresh. The suit was dismissed by the learned trial court on 20-3-1970 as not maintainable. The learned trial court observed that the relief sought by the plaintiff cannot be given by a revenue court as it was not possible to get the defendants ejected and the constructions, if any, demolished in proceeding u/s 209 of the Act. Earlier to the above order, a commission was issued in order to ascertain if the disputed plot consists of any construction as contended by the plaintiff. The report of the commission was confirmed by the learned trial court on 14-5-1969. The plaintiff went in appeal against the order of the learned trial court dated 20-3-1970 before the learned Additional Commissioner. The latter allowed the appeal by his order dated 7-10-1971. We gave the following finding :

(3.) On remand the case was tried on merits by the learned trial court. By order dated 12-3-1973, the plaintiffs suit was decreed, the defendants were ordered to be ejected from the plots in dispute. Against that order, the defendants went in appeal before the learned Additional Commissioner. The later has set aside the order of the trial court by his order dated 10-10-1973. We referred to two applications in the above order observing that the trial court has erred in passing the order without disposing of those applications. We also inferred that since a commission of experts was appointed a second time by the order of the trial court dated 15-1-1970 the earlier report of the Commissioner should be taken as cancelled.