STATE Vs. NEPAL

JUDGEMENT

(1.) This is a reference made by Additional Commissioner II, Meerut Division, Meerut dated 27.7.83 whereby he had recommended that the order of the Tahsildar, Mawana dated 9.2.82 through which the order dated 27.2.78 passed by him earlier was recalled be set aside being illegal and without jurisdiction.

(2.) The facts of the case in a nut-shell are that on the report of the lekhpal proceedings under Rule 115-C and under Sec. 122-B of U.P. Act No. 1 of 1951 were commenced against opposite parties Naipal Singh and Jaipal Singh. A notice in Form 49-K was issued to them upon which they made an objection that they had taken the land in dispute from the Gaon Sabha on Theka and had been continuing in possession for two years as asami and that they should be declared sirdars thereof. The lekhpal was examined and a date for the evidence of the opposite party was fixed. On that date they did not produce any oral evidence but merely filed a receipt issued in their favour by the Pradhan for Rs. 30 concerning the disputed land for a period of one year i.e. 1381 fasli. They gave an application also stating that they had taken the land as asami in 1973 for a period of one year and they had relinquished their possession of their own sweet will and were no longer occupying the land.

(3.) The learned Tahsildar rejected the defence version and passed an order for ejectment and damages against the opposite party vide his order dated 27.2.1978. On 2.12.81 the opposite party made an application to the Tahsildar under Sec. 151, C.P.C. that the order dated 27.2.78 had been made against them ex parte as they had not been heard and that the same should be withdrawn and the case be reheard on merits. This application was allowed by the Tahsildar by his order dated 9.2.82 and the order, passed earlier on 27.2.78 was set aside and the notice in Form 49-K was also withdrawn and the case was dismissed on the ground that the opposite parties had relinquished their possession. This order was challenged in revision by the State which has come up before this court on reference with the recommendation of the learned Additional Commissioner that the order of the Tahsildar dated 9.2.82 is beyond jurisdiction and deserves to be set aside.