Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the Petitioner and learned standing counsel for the Respondents.
(2.) THIS writ petition arises out of proceedings under Section 122B of U.P.Z.A. & L.R. Act. The first order was passed on 29.10.1992 by Assistant Collector, First Class, Nakud, District Saharanpur in Case No. 200 of 1991, Gaon Sabha v. Jagdish and others. Copy of the said judgment is Annexure -IV to the writ petition. The allegation against the Petitioner was that over a small area of 10 biswansis of khasra, Plot No. 43 -M, which was number of general abadi, he had made encroachment by filling a well which was in existence thereupon and then using the land for his private purposes. The case of the Petitioner was that the land in dispute was since long his ancestral land (part of his ancestral house) and he had not filled up any well. The encroachment was alleged to have been made since 1398 Fasli (July, 1990 to June 1991 A.D.). The Assistant Collector held that Petitioner had made encroachment. However the Assistant Collector categorically held that total plot No. 43, area 1.157 hectare was general abadi of the village. Ultimately through order dated 29.10.1992, eviction was directed and damages of Rs. 500/ - were also imposed against the Petitioner. Against the said judgment and order Petitioner filed Revision No. 5 of 1992, which was dismissed by Additional Collector (Administration), Saharanpur on 21.06.1993, hence this writ petition. The trial court did not give any reason to hold that a public well had been filled up by the Petitioner and included in his land, however Additional Collector has given some reasons. Additional Collector further held that in support of the contention that property in dispute was his ancestral property, Petitioner had not filed any documentary evidence and such an assertion could not be proved only by oral evidence. With this view I do not agree. If a person has got his house from his ancestors particularly in villages and when house has been inherited through four or five generations it is not always easy and possible to find documentary evidence. Learned Counsel for the Petitioner has mainly placed reliance upon the statement of lekhpal to the effect that the land/ well in dispute was within the gher (boundary wall) of the Petitioner, and that before his joining the post in the area where village in question was situate the well had already been filled up. He had also stated that on his report proceedings were initiated. He further stated that the well in dispute was not entered in Plot No. 43.
(3.) IN my opinion the matter requires thorough consideration and perusal of entire possible evidence.;