S.P.PANDEY, j. - (1.) THIS is a revision petition under Section 333 of the UPZA and LR Act ( here in after referred to as the Act) preferred against the order dated 23-9-1997 passed by the learned Ad­ditional Commissioner, Moradabad Division, Moradabad, arising out of an order dated 25-6-1996 and 3-7-1996 passed by the learned trial Court in a suit under Section 229-B of the Act.
(2.) BRIEF and relevant facts of the case are that one Habib, plaintiff instituted a suit under Section 229-B of the Act against the defendants Gaon Sabha and the State of U.P. with the allegation that the name of the plaintiff remained recorded in the revenue papers up to 1363-F as sirdar but with out ATany order of any competent authority, his name has been expunged. In 1992, to obtain a tractor loan, he contacted the lekhpal concerned for an extract of Khatauni and came to know about the fact that his aforesaid suit plots have been recorded as cultivable banjar in Class 5. It has been prayed that he be declared bhumidhar with transferable rights in pos­session over the land in suit as he is con­tinuing in possession over the same. The learned trial Court after completing the req­uisite trial has decreed the aforesaid suit on 25-6-1996. Aggrieved by this order, a revision was preferred. The learned Addi­tional Commissioner by means of his order dated 23-9-1997 has allowed the revision. Hence this second revision petition. I have heard the learned Counsel for the revisionist as well as the learned DGC (R) appearing for the State of U.P. and have also perused the record on file. For the revisionist, it was contended that the father of the revisionist was recorded as sirdar of the plots in suit in 1363, 1364 and 1383-F; that during the course of consolidation proceedings, by mistake and with out ATany order of the competent authority the name of his father was ex­punged and the land in suit was recorded as banjar in Class 5 ; that the learned trial Court has considered the evidence on record and has recorded a clear and categorical finding to the effect that the revisionist is the owner of the disputed land ; that the disputed land is situated near the river bed and it is not the subject-matter of the consolidation operations ; that CH form 41 does not prove the fact that the land in dispute was the subject-matter of consolidation as it simply in­cludes the old and new numbers of the plots ; that the suit is not barred under Section 49 of the UPCH Act as any case does not appear to have been decided by the consolidation authorities under the UPCH Act; that no such order has been entered in the revenue records as to the expunging the name of the revisionist from the revenue records ; that no evidence has been adduced by the opposite party to the effect that any order has been passed by any competent Court for expunging the name of the revisionist from the revenue records ; that no documentary or oral evidence has been adduced by the opposite party in support of its claim ; that with out ATany notice or any reason there of, the name of the revisionist has been expunged from the revenue records ; that the learned lower revisional Court has not considered the entire facts and circumstances as well as evidence on record and has recorded a finding quite erroneous perverse and wholly unwarranted in law based on sur­mises and conjectures ; that the opposite party has miserably failed to show as to why and how the name of the revisionist has been expunged from the revenue records; that the learned trial Court has properly examined the matter in question and has recorded a finding which is quite plausible and sustainable ; that the learned lower revisional Court has neither reversed the findings recorded by the learned trial Court nor has given any reason to set aside the aforesaid order passed by the learned trial Court; that there is nothing on record to show that the revisionist has been al­lotted any other land in lieu of the land in suit ; that the first revision petition preferred by the opposite party before the learned Additional Commissioner is not maintainable as it was preferred against a dead person ; that the fraudulent entry is liable to be disapproved as presumption about the entries made during the con­solidation operations in the regisier of rights is now rebuttable ; that the revisionist is cultivating the land in suit and the fake and fictitious entry in the revenue papers in favour of the opposite party can be rectified under Section 27 (2) of the UPCH Act as the revenue Courts/authorities are competent to rec­tify such mistakes even after the close of the consolidation operations ; that no positive and cogent evidence has been ad­duced by the opposite party in support of its claim over the land in suit; that it was incumbent upon the opposite party to show the order in pursuance of which the name of the revisionist was expunged from the revenue papers; that the learned trial Court has properly considered the evidence on record and has passed the aforesaid order decreeing the suit in favour of the revisionist; that the learned lower revisional Court has illegally al­lowed the revision preferred by the op­posite party. In support of his contentions he has cited the case laws reported in 1980 RD 43 (HC), 1970 RD 396 1998 RD (H) 89 (BR). The learned DGC (R) appearing for the Slate of U.P. submitted that the aforesaid impugned order passed by the learned Additional Commissioner is quite just and proper which must be maintained.
(3.) I have carefully and closely con­sidered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. On a close examination of the record, I find much force in the contentions raised by the learned Counsel for the revisionist. From a close perusal of the relevant records it is manifestly clear that Habib, father of the revisionist was in possession since before 1360-F in Class 2 as sirdar over the land in suit and this entry in revenue papers continued up to 1363-F. A perusal of the CH Form 41 reveals that, the aforesaid suit plots was recorded as banjar in 1384-F. There, is nothing on record to show that any proceeding was taken or any order was passed by any Court of competent jurisdiction or by the con­solidation authorities during the con­solidation operations in respect of the land in suit as per which the name of the revisionist has been expunged. The op­posite party has miserably failed to adduce any positive, convincing and cogent evidence to substantiate its claim over the disputed land. To establish its title and interest over the land in suit the opposite party must have shown the order as per which the name of the plaintiff-revisionist was expunged. No extract of Khatauni has been produced by the opposite party con­taining any amaldaramad of any order in­dicating the aforesaid facts. The aforesaid finding recorded by the learned lower revisional Court appears to be based on surmises and conjectures as the aforesaid entry made in favour of the opposite party in 1384-F appears to be fake fabricated and fraudulent. It is also worthwhile to men­tion here that the opposite party has not been able to adduce any evidence to the effect that there was any litigation between the parties during the consolidation operations and any notice was issued and served upon the plaintiff-revisionist. Having closely scrutinised the matter in question, I find that in the absence of any positive and convincing evidence, the aforesaid entry in CH Form 41 appears to be fake, fabricated and fraudulent and also with out ATany lawful basis. In the facts and circumstances of the instant case, the onus of leading positive evidence to show that any proceedings were taken in respect of the land in suit between the parties during the consolidation operations lay upon the opposite party.;