- (1.) THIS is a second appeal under Section, 331 of the UPZA & LR Act preferred against the judgment and decree dated 6-12-1991, passed by the learned Additional Commis sioner, Jhansi Division, Jhansi arising out of the judgment and decree dated 26-3-1990, passed by the learned trial Court in a suit under Section 229-B/209 of the UPZA and LR Act.
(2.) BRIEF and relevant facts of the case are that the plaintiff, Dhyan instituted a suit under Section 229- B/209 of the UPZA & LR Act with the prayer that he be declared Bhumidhar in possession with transferable rights over the suit land as detailed at the foot of the plaint and the name of the father of the defendants 3 to 6 entered in class 9 which is quite fake and forged, be deleted from the revenue records. The learned trial Court by means of its order dated 26-3-1990 dismissed the suit. Aggrieved by this order an appeal was preferred. The learned Additional Com missioner has dismissed the appeal too on 6-12-1991. Hence, this second appeal. I have heard the learned Counsel for the parties and have also perused the records on file. For the appellant, it was contended that the judgment and decree passed by the learned Courts below are against law and facts of the case ; that the name of the father of the respondent Nos. 1 to 4 was wrongly recorded in class 9of the Khatauni and, therefore, a suit was filed by the plaintiff-appellant but the learned Courts below have erroneously and il legally dismissed the suit of the plaintiff-appellant without giving any cogent and valid reason and as such they have com mitted manifest error of law ; that the plaintiff-appellant has denied the fact that PA-10 was issued and served upon him and it was the onus of the defendant-respon dent to prove the fact that PA-10 was properly issued and served upon the plaintiff- appellant, but both the Courts below have illegally shifted the burden to the plaintiff-appellant ; that plaintiff-appel lant has proved his ease beyond and doubt by adducing oral and documentary evidence, but the learned Courts below have records an erroneous, perverse, il legal and unreasonable finding contrary to the provisions of law against the plaintiff-appellant and as such the aforesaid im pugned orders are liable to be set aside. In support of his contentions, he has cited the case laws reported in 1982 RD 1 and 1985 RD 90. In reply, the learned Counsel for the respondent has submitted that the concur rent finding of fact recorded by the learned Courts below cannot be upset without any valid reason and as such the aforesaid im pugned order must be sustained. I have carefully and closely con sidered the contentions, raised by the learned Counsel for the parties and have also gone through the records on file. From a bare perusal of the record, it is manifestly clear that as per the extract of Khatauni 1374- 76-F pertaining to the vil lage concerned, below the columns 8, 9, 10, 11 and 12, there is an Amaldaramad, to the effect that on plot number 278/1 area 3. 94 acres, Tulalya s/o Dhire be entered in class 9. There is no mention of the date of the order of any authority, in compliance of which this entry has been effected. To my mind, this entry is quite forged and fabri cated. In the extract of Khatauni 1380-86f, there is an Amaldaramad to the effect that the name of the aforesaid Tulalya be ex punged from the disputed land plot No. 278/1 area 3 acres. In column 2 the name of Kare, father of the appellant is recorded as the tenure-holder over the disputed land 278/1 area 3. 94 acres, 278/2 area 7. 88 acres totalling 11. 82 acres. Extract of Khasra for 1383-94f, the possession of the aforesaid Tulalya is not recorded in 1383fandl385f and as such no continuous possession of the defendant- respondent is found over the disputed holding.
(3.) HAVING closely scrutinized the mat ter in question, I find that the respondents have miserably failed to substantiate their possession over the disputed holding in consonance with the provisions of the Land Records Mandal. In the present case, there is no entry in remarks column in red ink below the entry of possession about the serial number of the list of changes and as such it cannot be presumed that PA-10 must have been issued and served upon the recorded tenure-holder. In fact, the provisions contained in para A-80, A-81, A-82 and A- 102-C have not been complied with whereas the provisions concerned are mandatory. It is also evidently clear that adverse possession in favour of the respon dents is not adequate in continuity, in publicity and extent. Uninterrupted pos session for 12 years of the respondent is not proved. The learned trial Court has erroneously and illegally dismissed the suit of the plaintiff-appellant. The learned lower appellate Court has also not ex amined the facts and circumstances of the instant case and has upheld the aforesaid unsustainable, ill-founded and unwar ranted in law judgment and order passed by the learned trial Court. A close ex amination of the records clearly reveals that there has been a clear denial of natural justice to the appellant. In the instant case, without any positive and cogent evidence, the learned Courts below have maintained the entry of class 9 in favour of the respon dent using a great miscarriage of justice to the plaintiff-appellant by the aforesaid im pugned orders passed by the learned Courts below. It is quite strange that the learned Additional Commissioner had shifted the onus of proof as to adverse possession from respondents to the appellant. In order to promote the ends of substantive natural justice and to facilitate its course, it would be quite just and proper to quash the impugned order passed by the learned Courts below as the same is quite unjust, unsustainable and unfounded and wholly unwarranted in law.;