- (1.) THIS is a second appeal against the judgment and decree dated 24-4-1996/22-5-1996, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal No. 34/53 of 1991-92, allowing the same and reversing t he judgment and decree, dated 31-1-1992/12-2-1992, passed by the learned trial Court in a suit under Section 229-B of the UPZA & LR Act (hereinafter referred to as the Act ).
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Tulaiya instituted a suit under Section 229-B of the Act against the defendants, U. P. State etc. for declaration of his rights as bhumidhar with non-transferable rights of the land, in dispute, inter-alia pleading that inspite of the fact that he was in possession of the land in dispute, for over 20-25 years and the proceedings under Rule 115-C of the UPZA & LR Rules were dropped and he was not ejected and was deemed to be the bhumidhar of the land, in dispute with non-transferable rights, the Gaon Sabha, concerned allotted the same fraudulently in favour of the Defendant No. 3, Bal Kishan which has no effect whatsoever on his rights and title, that since the name of the plaintiff is not recorded as bhumidhar of the land in dispute with non-transferable rights, his rights may be adversely affected in future and therefore, the cause of action arose. On notice, the Defendant No. 3, Bal Kishan contested the suit denying the allegations and inter-alia pleading that he is a bona-fide allottee of the land in dispute as the lease in question has been validly granted to him by the Gaon Sabha concerned, of which amaldaramad has already been completed and therefore, the plaintiff has no claim whatsoever over the land, in dispute and his suit is liable to be dismissed. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, vide its judgment and decree dated 31-1-1992 against which he went up in appeal before the learned Additional Commissioner, who has allowed the same and declared the plaintiff as bhumidhar of the land, in dispute with non-transferable rights, vide his judgment and decree, dated 24-4-1996 and therefore, it is against this judgment and decree that the instant second appeal has been preferred by Bal Kishan before the Board. I have heard the learned Counsel for the parties and have also perused the record, on file. Assailing the impugned judgment and decree, the learned Counsel for the appellant contended that since the learned Court of first appeal erred in law in basing its reliance upon the oral evidence of the plaintiff, without attaching any importance to the entries, made in the revenue records, as banjar of the Gaon Sabha and therefore, the land, in dispute was legally fit for allotment, the impugned judgment and decree passed by it, is bad in law; that since the plaintiff has miserably failed to prove his possession on 30-6-1985, the learned Court below has grossly erred in holding otherwise; that since the appellant is in possession on the basis of the valid lease in question, executed in his favour by the competent authority, by ignoring the decision in the proceedings under Section 198 (4) of the Act by the learned trial Court as well as the revisional Court, the learned Court below has erred, in law in holding otherwise; that the impugned judgment and decree is no decree in the eyes of law, as the same is based upon an order, passed in proceedings under Rule 115-C of the UPZA & LR Rules, without attaching any importance to the order, passed in the proceedings under Section 198 (4) of the Act; that in any view of the matter, the impugned judgment and decree is illegal, perverse and without jurisdiction as any temporary encroachment on the Gaon Sabha property by any person would not confer any right or title to the occupant under Section 122-B (4-F)of the Act and would also not deprive the Gaon Sabha, concerned to admit any person over its property, and therefore, such a decree cannot, at any stretch of imagination, be allowed to sustain and this second appeal very richly deserves to be allowed, in to to. The learned Counsel for the respondent, in reply, urged that in view of the statement of the Lekhpal, concerned during his examination-in-chief, in proceedings under Section 198 (4) of the Act, confirming the possession of Tulaiya, plaintiff and in the facts and circumstances of the instant case, the learned Court of first appeal was perfectly justified in decreeing the suit of the plaintiff after dealing with each and every aspect of the matter, in question, with which no interference is called for by this Court at this second appellate stage and therefore, this second appeal, having no force, very richly deserves dismissal, outright, as no substantial question of law is involved in the same. I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record on file. A bare perusal of the record on file clearly reveals that the claim of the plaintiff is based upon his possession for over 20-25 years. It has been pleaded by him that in the proceedings under Rule 115-C of the UPZA & LR Rules, the learned tehsildar dropped the proceedings earlier, finding his old possession over the land in dispute and extending the benefit under Section 122-B (4-F) of the Act. The learned trial Court is of the opinion that since a valid lease had been granted in gavour of the Defendant No. 3, Bal Kishan, such benefit under Section 122-B (4-F) of the Act cannot, at any stretch of imagination, be extended to the plaintiff. The learned Additional Commissioner, to the contrary, has held that from the evidence on record, the possession of the plaintiff for over 15-20 years is proved to the hilt, in view of the examination-in-chief of the Lekhpal, concerned, who in the proceedings under Section 198 (4) of the Act, had deposed that the possession of the plaintiff remained upto 1395-F continuously. It is also not out of the place to mention here that in case a person belonging to the scheduled caste community is in possession of the land belonging to the Gaon Sabha, concerned on the cut-off date and a lease has been granted by the LMC, concerned to another person, the occupant of such land need not to file a case under Section 198 (4) of the Act and such a patta shall always be deemed as in effective and in-operative and therefore, the occupant shall be entitled to the benefit under Section 122-B (4-F) of the Act, if he qualifies requisite conditions. This view also finds support from the case law reported in 1991 RD 192 (para 16 ). It would, therefore, lead to the conclusion that since the plaintiff has already perfected his claim under Section 122-B (4-F) of the Act, the question of the effect of the decisions in proceedings under Section 198 (4) of the Act does not arise at all. Since the plaintiff has come out successfully in establishing his claim, in my considered opinion, the learned Additional Commissioner, was perfectly justified in rending the impugned judgment and decree, declaring the plaintiff as bhumidhar of the land in dispute with non-transferable rights, with which no interference is called for at this stage, while the learned trial Court has swayed away on flimsy grounds in rejecting the claim of the plaintiff. No illegality or material irregularity in the exercise of his jurisdiction has either been committed and therefore, the contentions of the learned Counsel for the appellant, who has miserably failed to substantiate his claim, are rather untenable for the same reason. The learned Additional Commissioner, has rather dealt with the matter in question logically and reasonably, in correct perspective of law and therefore, in a not shell, I am of the considered view that this second appeal having no force, very richly deserves dismissal, outright.
(3.) IN consequence, this second appeal fails and is, accordingly, dismissed and the impugned judgment and decree, passed by the learned Additional Commissioner, is hereby confirmed and maintained. Let records be returned forthwith to the Courts, concerned. Appeal dismissed. .;