GULAB CHANDRA Vs. RAM SURAT

JUDGEMENT

(1.) These two appeals have been preferred against the order dated 13.9.85 passed by Sri B.B.Lal Srivastava, Additional Commissioner Varanasi Division, Varanasi in appeal No. 202/61 of 1978 and appeal No. 201/446/60 of 1978 District Varanasi dismissing the appeals and upholding the order of the trial court dated 18.11.1978 passed by Sri S.P.Bajpai, S.D.O. Chandauli (East) District Varanasi in restoration case No. 266/2/9/ 56 and restoration case No. 250/260/57 under Sec. 229B of U.P.Z.A. & L.R. Act in respect of land situated in village Sarai Rasulpur Pargana Barah, District Varanasi whereby the learned Trial Court had rejected the restoration application moved by Gulab Chandra dated 10.7.72 for recalling the judgement and decree dated 15.10.68 under Sec. 229.B of U.P.Z.A. and L.R. Act in suit No. 314/775 Ram Surat Vs. Gulab Chandra and restoration application dated 27.8.72 moved on behalf of Gulab Chandra in suit No. 316/777 Ram Surat Vs. Gulab Chandra.

(2.) Briefly stated the facts are that Gulab Chandra filed a suit under Sec. 229B of U.P.Z.A. and L.R. Act, Gulab Chandra Vs. Ram Surat in respect of plot No. 178 Area 1.35 acres which was dismissed in default of Gulab Chandra on 14.4.70 by S.D.O. Chandauli (East). A restoration application dated 14.4.70 moved on behalf of Gulab Chandra, was abated on account of the consolidation operations in the village. Gulab Chandra moved a restoration application dated 27.8.72 for recalling the order dated 14.4.70. Gulab Chandra had moved a restoration application dated 10.7.72 for recalling the order dated 15.10.68 passed in suit No. 314/775, Ram Surat Vs. Gulab Chandra under Sec. 229B of U.P.Z.A. and L.R. Act. The trial court after hearing both the parties had found that Gulab Chandra had failed to show sufficient cause for condoning the two years delay in filing the restoration application and had dismissed the above restoration application vide its common order dated 18.11.1978. Aggrieved by this Gulab Chandra preferred two appeals before Additional Commissioner who has dismissed the appeals vide his order dated 13.9.85. Against this these two appeals have been filed in the Board.

(3.) I have heard the learned counsel for the appellant. The opposite parties did not appear in spite of registered notices. I have also gone through the record. The learned counsel has submitted that the learned lower courts misread the evidence on records and acted illegally in holding that Gulab Chandra had knowledge of orders dated 14.10.68/15.10.68 on 7.3.70 as he had filed amendment application in original suit No. 109/842, Gulab Chand Vs. Ram Surat whereas this amendment application had no concern with knowledge of present suit hence learned lower courts committed apparent error in disbelieving un-controverted statement of Ram Briksha alleged witness of summons in the original court. According to him it was the duty of the courts below to consider the signature of Gulab Chand over the disputed summon and to tally same from the admitted signature of the restoration case. He also said that the finding of learned lower courts on the point of knowledge and limitation is misconceived, against the evidence on record passed on misreading of evidence, as such are liable to be quashed. He argued that there is sufficient explanation on the point of knowledge and sufficient cause for restoration and the order of both the courts below are apparently illegal, unjust, against the settled principle of law against the principle of natural justice and as such the appeals be allowed and restoration application be allowed and the case be abated under Sec. 5 (2) of U.P.C.H. Act. He also cited 1995 Allahabad AIR page 259 and 1987 RD page 416 in support of his contentions.