- (1.) THIS is a revision petition under Section 333 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and order dated 10-3-1997, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal Nos. 77/25 and 71/49 of 1994-95/banda, arising out of the judgment and decree/order dated 19-7-93 and 30-6-1995 passed by the learned trial Court in a suit under Section 229-B of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant revision petition are that the plaintiff, Ramiya instituted a suit under Section 229-B of the Act for declaration of his rights over the land in dispute, against the defendant, Raghurai etc. impleading the State of U. P. and the Gaon Sabha concerned, inter alia, pleading that his father, Jagannath purchased 1/3 share of the land, in dispute, from Devidin for his minor sons, the plaintiff and the Defendant No. 3 and the rest 2/3 portion of the land, in disputed was acquired by the father of the defendants 4 and 5 and all of them were bhumidhars in possession of the same since then; that since the Defendant No. 3 was his elder brother, his father got his name recorded over the land, in dispute, although his father had acquired the land in dispute, for both of his sons. The cause of action arose because the name of his elder brother was solely recorded in the revenue records which may adversely affect his rights and title to the same, in future. On notice, the state contested the suit, denying the allegations and filing its written statement. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff and ordered for recording of the name of the plaintiff as well, alongwith the Defendant No. 3 on Plot No. 26, vide its order dated 19-7-1993. Thereafter, on 29- 10-1993, a restoration application was moved by the Defendant No. 3, Raghurai along with an affidavit, to which objections were filed by Ramiya, on 28-1-1995. The learned trial Court vide its order, dated 30- 6-1995, dismissed this application. Raghurai went up in Appeal No. 77/25 before the learned Additional Commissioner, who has allowed the same, set aside the orders, dated 30-6-1995 and 19-7-1993, passed by the learned trial Court and remanded the case to it for decision, afresh on merits, according to law; vide his judgment and order, dated 10-3-1997 and therefore, it is against this order that Ramiya has preferred this revision petition before the Board. I have heard the learned Counsel for the parties and have also perused the record, on file. Assailing the impugned order, the learned Counsel for the revisionist contended that since Raghurai is the real brother of the revisionist, no question of any suppression of service of summonses arises; that since the property, in dispute, belongs to a joint Hindu family, acquired by its common funds, the benefit of the same will go to all its members and therefore, the learned trial Court was perfectly justified in decreeing the suit of the plaintiff; that since Raghurai remained negligent and careless through out and has filed his restroration application without disclosing the source of knowledge of the ex parte, decree to him, the learned Additional Commissioner, has grossly erred in allowing his appeal; that since it was proved to the hilt that Raghurai had refused to accept the summonses, his restoration application has rightly been rejected by the learned Additional Commissioner, has erred in overlooking this aspect of the matter, in question; that since it is the settled principle of law that the burden of proving non-service of summons lies upon the person, who says so, the learned Additional Commissioner, has in fact, erred in law and fact in setting aside the order, passed by the learned trial Court; that since the revisionist's suit for permanent injunction was decreed by the civil Court, it is also a circumstance, which goes to establish his claim; that in any view of the matter, the impugned judgment and order is illegal, perverse and without jurisdiction which cannot, at any stretch of imagination, be allowed to sustain and this revision petition very richly deserve to be allowed. In support, reliance has been placed on the case laws reported is 1982 RD 370, 1994 RD 241, AIR 1994 Patna 103. The learned Counsel for the opposite party, in reply, urged that since the land in dispute has not been acquired by the common funds of the joint Hindu family but by the Defendant No. 3, the learned Court of first appeal, in the facts and circumstances of the instant case as well as the evidence, both documentary and oral, on record, was perfectly justified in rendering the impugned order and therefore, this revision petition, having no force, very richly deserves dismissal outright. I have closely and carefully considered the arguments, advanced before the learned Counsel for the parties and have also scanned the record, on file. At the very outset, it is pertinent to mention here that in a matter of declaration of title or rights, the same should not be disposed of on technical grounds but on merits, after affording due and proper opportunity of being heard to the parties, concerned. Here, in the instant case, the defendant has been shown to have refused the summons, issued by the learned trial Court and therefore, it has held the service by affixation upon him as sufficient, while the respondent No. 3 has denied this fact and has, in fact, categorised the decree in question as ex parte. The learned Additional Commissioner, on the other hand, has observed that the provision of Rule 75 of the Revenue Court Manual has not been observed, while effecting the service by affixation. For such type of service, it is mandatory in law that the same should be duly verified by pradhan/up- pradhan/patwari, concerned. This mandatory provision is badly lacking in the instant case, as the same has not been observed while effecting service on the Defendant No. 3 and therefore, the learned Additional Commissioner, has rather very correctly allowed the appeal and remanded the case to the learned trial Court. He has, in fact, dealt with the matter in question at length, in correct perspective of land and has actually advanced the cause of justice. It is also the settled principle of law that none should be condemned unheard and therefore, the views, expressed by him are quite analytical and logical with which, no interference is called for in this revisional jurisdiction and as such I also concur with the same. The parties have nothing to worry about or feel aggrieved or prejudiced, as they will have ample opportunity of being heard and adduce evidence, if any, in favour of their claim and therefore, I am of the considered opinion that this revision petition, having no force, very richly deserves dismissal, outright. Needless to say, since this is rather one of the oldest cases pending before the learned trial Court, it is at lest, expected to dispose of the same expeditiously.
(3.) IN view of the above, this revision petition fails and is, accordingly, dismissed and the impugned judgment and order, passed by the learned Additional Commissioner, is hereby confirmed and maintained. Let records be returned forthwith to the Courts, concerned. Parties to appear before the Court, concerned on 2-2-2004. Revision dismissed. .;