SHYAM SUNDAR TEWARI Vs. PARMANAND TEWARI

JUDGEMENT

(1.) Shyam Sundar Tewari s/o Surju Tewari and Nand Lal s/o Vishwanath r/o village Chhatrapur Tahsil Chandauli P.O. Syedraja, District Varanasi have preferred this second appeal against judgement and decree dated 10.6.88 passed by Sri P.C. Sonia Additional Commissioner 1st, Varanasi in appeal No. 3/60 of 1983, District Varanasi allowing the appeal and setting aside the judgement and decree dated 23.3.1983 passed by S.D.O. Chandauli (W), Varanasi in suit No. 20 under Sec. 229-B of U.P.Z.A and L.R. Act in respect of disputed land situate in village Kalyanpur Pargana Narwan Tah. Chandauli (W), Varanasi whereby the learned S.D.O. had dismissed the suit of the plaintiffs Parmanand Tewari etc.

(2.) In short the facts of the case are that a law suit under Sec. 229B of U.P. Z.A. and L.R. Act was instituted by the plaintiffs Shiv Nath etc. (since deceased and substituted by Parmanand Tewari etc.) seeking a declaration of co-Bhumidhari rights along with the defendants stating that the disputed land plots No. 308 and 310 were Plot No. 385/1 and 385/2 prior to consolidation operations which were the grove land of Sarju and Rachhu, the ancestors of both the parties in suit; that during consolidation operations the respondents belonging to Rachhu's branch got the names of the plaintiffs expunged from the revenue records by playing fraud upon the consolidation courts; Ram Harakh belonging to Sarju's branch was impleaded as defendant as he did not join the suit as plaintiffs. The defendant Shyam Sundar, Nand Lal and Ram Harakh filed a common W.S. on 16.3.82 and stated therein that the original plot no was undoubtedly the grove planted by the ancestors of both the branches but later on the trees had fallen down and a fresh grove had been planted by the defendants themselves; that defendants are rightly recorded as Bhumidhar in the revenue records. They also pleaded that the plaintiffs did not raise objection during consolidation operations hence their claims are now barred by Sec. 49 of U.P.C.H. Act. The trial court framed seven issues and after giving opportunity for evidences to both the parties and after hearing them, the trial court came to the conclusion that the claim of the plaintiffs was barred by Sec. 49 of U.P.C.H. Act and accordingly dismissed the suit vide its judgement and decree dated 22.3.1983. The plaintiffs filed appeal before Additional Commissioner, Varanasi who after hearing both the parties has allowed the appeal and set aside the trial court's order dated 22.3.1983 vide his judgement and decree dated 10.6.88. Feeling aggrieved the defendants have filed this second appeal in the Board.

(3.) I have heard the learned counsels appearing on behalf of both the parties and have also gone through the records of the case. The learned counsel for the appellants has submitted that the suit of the plaintiffs was clearly barred by Sec. 49 of the U.P.C.H. Act and trial court rightly dismissed the suit holding that the suit filed on behalf of plaintiffs/respondents is barred by Sec. 49 and the view to the contrary taken by lower appellate court is erroneous. He also said that admittedly the appellant's name was exclusively recorded as bhumidhars over the disputed plots and plaintiff/respondents had filed the objection before Consolidation Officer Chakia and their objection was registered as case No. 955/81 and the was rejected by the C.O. Chakia vide his order dated 25.7.81 and the plaintiffs/respondents did not challenge the order of C.O. which became final hence the present suit under Sec. 229B filed by plaintiffs/ respondents is clearly barred by the provisions of Sec. 49 of the U.P.C.H. Act but the Additional Commissioner has illegally allowed the appeal and set aside a just and proper order passed by the trial court. He also said it is settled principle of law that the plaintiff has to prove his case on the strength of his own evidence and he can not take advantage of the weakness in defence case and in this case the plaintiffs have failed to prove that the disputed plots were ever acquired by the ancestors of the parties hence the trial court was right in rejecting the suit of the plaintiffs but the lower appellate court has committed error in decreeing the suit which is against the weight of the evidence on record as adduced by the parties. He further said that Ram Harakh filed an affidavit during the pendency of the appeal stating that he never signed written statement filed on his behalf nor he had engaged any counsel who filed the W.S. on his behalf. The lower appellate court has committed an error in ignoring this affidavit on the ground that it is an after-thought by the appellants. He has cited 1986 R.J. page 278 and 1981 R.D. page 1 in support of his contentions. He urged to allow the appeal and quash the impugned judgement and decree dated 10.6.88 of the learned Additional Commissioner. The learned counsel for the opposite parties has submitted in reply that the learned Additional Commissioner has rightly allowed the first appeal after a proper appraisal of the evidence on record and there is no error in the impugned order. He also said that the first appellate court being the court of fact and law and the decision passed by it should not be disturbed in a second appeal because this principle is almost settled by the Apex Court. He requested that since no substantial question of law is involved in it, this second appeal should be dismissed and the judgement and decree of the lower appellate court be maintained.