AMAR SINGH Vs. KUNDAN LAL

JUDGEMENT

(1.) THIS is a second appeal against the judgment and order dated 30-3-1990 passed by the learned Additional Commissioner, Garhwal Mandal, Pauri in appeal No. 1 7 of 1986-87, dismissing the same and uphold­ing the judgment and decree dated 4-7-1987 passed by the learned Assistant Col­lector, Barkot, Uttarkashi, in Suit No. 48/81-82, 48/82-83 under Section 229-B of the U.P.Z. A. and L.R. Act concerning land situate in village Biyanli Patti Bandal Tah-sil Barkot District Uttarkashi.

(2.) BRIEFLY stated, the facts are that Amar Singh plaintiff-appellant instituted the suit on 7-6-1982, seeking declaration of Bhumidhari rights on the grounds that he had been in possession over the dis­puted land since 1960 as an Asami that by operation of law he became Sirdar in 1974 and Bhumidhar in 1977 and that the entries in the records did not represent correct state of affairs and needed amend­ment. Notices were issued to all the eight defendants. Defendant Nos. 1 to 3 and 6 field .Iqbaldavt on 11-8-1982. On 28-8-1982 a W.S. was filed by the Pradhan of the Gaon Sabha, stating therein that the Gaon Sabha had no objection to the suit of the plaintiff being decreed. On 15-9-1982, one Smt. Jhiri widow of Harish filed an Iqbal-dava admitting the claim of the plaintiff on behalf of Soka minor, defendant No. 5, on the same day one Smt. Geoni filed a W.S. on behalf of Sankatya defendant No. 4, minor admitting the claim of the plaintiff. No WS. appears to have been filed on behalf of the State on 24-9-1982, the trial Court framed two issues on 5-10-1982, the statement of Kundan Lal, Samwal, Halqa Patwari (PW 1) and Amar Singh (PW 2) were recorded and the case was adjourned to 19-10- 82. On 19-10-82, the arguments of the learned DGC and the learned Coun­sel for the plaintiff were heard and the case was adjourned to 5-11-82 for orders. On 5-11-82, orders could not be pronounced on account of Dashehra holidays and the case was fixed for orders on 11-11-82. The learned trial Court dismissed the suit on 11-11 -82 which was holiday that there was a case of illegal transfer of holdings by the defendants in favour of the plaintiff and the land would vest in the State under Sections 166/167 of the U.P.Z.A. and L.R. Act. The Court placed reliance mainly on the confidential reports of Sri R.C. Tewari Tahsildar, dated 17-9- 1982 and Sarjeet Arya Supervisor Kanoongo Rajgarhi dated 21-10- 1982. This order was chal­lenged in appeal. The learned Additional Commissioner by his order dated 5-8-1983 allowed the appeal and remanded the case to the trial Court for fresh decision after calling the concerned Tahsildar and Super­visor Kanoongo also in the witness box. On remand, the defendants resiled from their previous admission, but did not adduce any evidence. On 15-4-87, the statement of Shri R.C. Tewari, Tahsildar was recorded. In cross examination, he slated that he was on leave on 17-9-1982. In the very begin­ning of his report dated 17-9-82 Sri Tewari had written that he had handed over charge of Tahsildar Barkot on 30- 8-1982 and was on leave. He categorically stated that he did not go to the disputed plots and that he did not get the situation inspected by his. subordinate staff. He, however, stated that the parties were endeavouring to make illegal transfer, and had handed over applications to him (Sri Tewari) for getting the permission of the Collector. The Tahsildar could not explain as to why and in which circumstances, he was alleged to make a report on 17-9-82 after handing over charge on 30-8-82. The statement of Sri Sarjeet Arya was recorded on 8-1-1985, Hestated that he had submitted this report dated 21-10-92 in compliance with the order of the SDO. A perusal of the records shows that there is no such order on the record. He did not bring his diary to estab­lish that his visit to the spot one 21-10-82 was mentioned therein. On 8-1-1985 itself, an application was moved by the plaintiff for summoning the diary of 21-10-82. The trial Court found that the plots in question do to constitute dense forest and answered issue No. 1 in the negative. The Court, however, held that the evidence on record indicated that there happened to be trans­fer of land by the defendant who are mem­bers of scheduled caste in favour of plain­tiff who does not belong to that class and this amounted to illegal transfer. The suit was dismissed on 4-7-1987. Against this order, Amar Singh filed first appeal before the learned Additional Commissioner which was dismsised by the impugned order. He has now come up in second appeal before the Board.

(3.) THE learned Counsel for the defen­dant-respondents stated that the defen­dants had once admitted the claim of the plaintiff. The learned DGC (R) has sub­mitted in reply that the circumstances of the case revealed beyond any shadow of doubt that the defendants who belonged to scheduled caste tried to alienate land in favour of plaintiff who does not belong to the same class without permission of the Collec­tor and also with a view to evade stamp duty and registration charges and the view taken by the learned Courts below is justified.