STATE Vs. RAM NIHORE

JUDGEMENT

(1.) THIS revision petition has been filed by the State of U.P. through the Collector, Kaushambi and the Gaon Sabha Jamunapur against the order dated 23-3-1999 passed by the learned Additional Commissioner, Al­lahabad Division, Allahabad in review petition arising out of appeal No. 160 of 1998 in a case under Section 229-B/122-B (4-F)of theUPZA and LR Act.

(2.) IT appears that Ram Nihore in­stituted a suit under Section 229-B/122-B (4-F) of the UPZA and LR Act claiming rights by virtue of his continuous posses­sion on the land in question from before 30-6-1985. He also averred that a large number of trees planted by him exist on the land in question. The trial Court by its order dated 31-7-1997 held that the plain­tiff had acquired rights and the suit under Section 229-B/122-B (4-F) of the Act was liable to be decreed. It decreed that suit for plot No. 9M/1.255 hectares only. On ap­peal being filed by the State of U.P. and the Gaon Sabha concerned, the learned Addi­tional Commissioner by his order dated 17-8-1998 remanded the case to the trial Court for decision afresh. Thereafter a review petition was filed on behalf of Ram Nihore alleging that the appeal filed on 8-5-1998 against the order dated 31-7-1997 was beyond time and the delay in filing the appeal had not been explained. It was specifically alleged that a copy of the trial Court's order was obtained on 11-3-1998 and the affidavit was sworn on 29-4-1998 but the appeal was filed only on 8-5-1998. Another legal objection was raised that the first appeal did not accompany a certified copy of the decree passed by the Court of the first instance and was, there­fore, not maintainable. The learned Addi­tional Commissioner heard the parties concerned and agreed with the submis­sions made on behalf of Ram Nihore. He found that the appeal was beyond time and was not competent on account of the fact that a certified copy of the decree had not been field. He granted the review petition and recalled his earlier order dated 17-8-1998 and dismissed the appeal as being time barred and being incompetent. Feel­ing aggrieved by this order State of U.P. and the Gaon Sabha have now come up in this revision petition before the Board.

(3.) THE learned DGC (R) has sub­mitted that the delay in filing the appeal had been explained and the learned Addi­tional Commissioner acted illegally and with substantial irregularity in holding the appeal being time barred. He submitted that the original decree was before the Court concerned at the time of hearing and disposal of the appeal and hence non-filing of a certified copy of the decree would have no material effect on the case. The learned Counsel for the opposite party had sup­ported the views expressed by the learned Additional Commissioner and cited 1987 RD 89; 1990 RR 366; 1998 RD 18 and 1999 RD 54, in support of his contention.