KALESAR Vs. RAJA RAM

JUDGEMENT

(1.) THIS second appeal has been filed by Kalesar against the judgment and decree passed by the learned Additional Commissioner, Al­lahabad Division, Allahabad in appeal No. 147 of 1992-93 arising out of a suit under Section 229-B of the UPZA and LR Act.

(2.) BRIEFLY stated, the facts of the case are that Kalesar instituted a suit under Section 229-B of the UPZA and LR Act for declaration of his rights. He averred that he was Harijan by caste; was in posses­sion over the land in question from before 30-6-1975 and was a landless agricultural labourers. He also averred that the civil Court in a Civil suit had held him to be the owner of the trees and BAGHDAR of the land in question. The suit had originally been filed against the State of U.P. and the Gaon Sabha. Later on Raja Ram and 4 others were impleaded as defendants by the order dated 18-12-1993. Notices were sent to them for putting in appearance before the Court on 18-3-1993. A perusal of the endorsement on the back of the summonses indicates that some of them accepted the summons but refused to sign the summons in token of accpetnace. Raja Ram was present on the spot but refused to accept the summons which was served on him by affixation. The suit proceeded thereafter and on 10-5-1993 the trial Court ordered that the suit would proceed ex parte against Raja Rant and others. Evidence of the plaintiff was recorded. The trial Court framed 4 issues and held that the plaintiff was a person belonging to Scheduled Caste ; that he was a landless agricultural labourer; that he was in pos­session from before the relevant date and that his trees existed on the plot in ques­tion. It also held that the Civil Court had decided the plaintiff to be the owner of the trees. The trial Court gave him the benefit of Section 122-B (4-F) of the UPZA and LR Act and decreed the suit. Feeling ag­grieved by this order Raja Ram and others filed a revision before the learned Addi­tional Commissioner which was later on converted into an appeal by the order dated 20-12-1994. The learned Additional Commissioner allowed the appeal and passed an order of remand. Feeling ag­grieved by this order Kalesar has come up in this second appeal before the Board.

(3.) THE learned Counsel for the appel­lant has submitted that Raja Ram had filed a revision before the learned Additional Commissioner which was converted into an appeal later on. According to him, the converted appeal became time barred and the learned Additional Commissioner did not pass any order to condone the delay. He submitted that summons were issued to Raja Ram and others and service on them had been treated sufficient by the trial Court. He submitted further that the learned Additional Commissioner has acted wrongly in presuming that the service of summonses had no 1 been properly effected. He stated that the trial Court considered the entire material on record and found that the plaintiff was entitled to receive the benefit of Section 122-B (4-F) of the UPZA and LR Act, particularly when he had been declared to be owner of the trees by the Civil Court and his possession of a long duration was established. He urged that the learned Additional Com­missioner has erred gravely in passing the order of remand which is totally unjus­tified. The learned Counsel for the respon­dents has submitted in reply that the ser­vice on the present respondents was not proper and evidence ought to have been taken on the point whether the benefit of Section 122-B (4- F) of the UPZA and LR Act could be given to the present appellant. According to him the order of remand will give an opportunity to both the parties to fight out the case before the trial Court.