RAGHUBIR PRASAD Vs. MAHANT GOVIND DASS

JUDGEMENT

(1.) RAM Janam Singh J. This Second Appeal No. 32 of 1998-99 Pauri Garhwal has been preferred by Raghubir Prasad against the judgment and decree dated 5-6-99 passed by learned Additional Commissioner, Pauri Garhwal Division.

(2.) BRIEFLY stated the facts of the case are that plaintiff- respondent filed a suit on the basis of adverse possession under Sec tion 229-B of the U. P. Z. A. and L. R. Act before the learned trial Court. The original tenure-holder of the land in dis pute was one Makhan Lal but the plaint was filed against one Makhan Dass. The notice too was issued in the name of Mak han Dass but that notice was returned with an endorsement that Selh Makhan Lal does not exist and that his address is also not known. But this endorsement has not been signed by two witnesses of the locality of the village. The plaintiff- respondent thereafter moved an application before the trial Court requesting the Court that he be allowed to get the notice published in a local daily. This application was moved on 29-3-93. This application was allowed on 13-5-93 and the same was published in one 'jayat' paper bearing no date or place from where the paper was being published. The date of appearance was 11-5-93. After this publication the statements of Mahant Govind Dass and Pradhan were recorded on 3- 6-93 and the suit was decreed ex-parte on 2-7-93. The ex-parte decree was passed on the basis of the statement of Mahant Govind Dass and Pradhan and that there is no documentary evidence to prove the ad verse possession on of the plaintiff-respondent. Against this order the defen dant-appellant moved a restoration ap plication before the trial Court on 19-7-97 claiming that Makhan Lal died on 27-6-90 and he has executed a Will-deed in favour of Raghubir Prasad, the present applicant. M/s. Birla International Pvt. Ltd. , the pur chaser was also impleaded as a party on the basis of the sale-deed. The learned trial Court on the application of M/s. Birla International for impleadment passed an order that it will take up the restoration application first and decide the implead ment application thereon. Against this order revision was preferred before the Commissioner which was allowed and M/s. Birla International was impleaded as a party in the suit on 27-2-98. The present appellant came to know about this ex-parte decree on 19-7-97 and on the same day filed a restoration application before the trial Court. According to the appellant Makhan Lal died on 27-6-90 and his where about are not known and no effort was made by the plaintiff-respondent to find out as to who was the original tenure-holder. The learned Additional Commis sioner has dismissed the appeal being time barred on 3-6- 99. Aggrieved by this order this second appeal has been preferred.

(3.) THE argument of the learned Coun sel for the plaintiff- respondent is that the plaintiff is in possession over the land in dispute for the last 16 years and the land in dispute was rented out to the State Government. Pradhan has also proved his case and on the basis of this decree he has transferred the land to M/s. Birla Interna tional.