- (1.) S. P. Pandey, Member. These are two second appeals against the judgment and decree, dated 17-2-1994, passed by the learned Additional Commissioner, Varansi Division, Varanasi, in Appeal Nos. 1 and 2 of 1991, arising out of the judgment and decree, dated 31-10-1991, passed by the learned trial Court in 2 suits under Sections 229-B/209 of the UPZA & LR Act (hereinafter referred to as the Act ).
(2.) BRIEFLY stated, the facts giving rise to the instant second appeals are that Sia Ram etc. instituted a Suit No. 4 under Sections 229-B/209 of the Act for declaration of their rights as bhumidhar of the land in dispute against the defendant, Satya Nararain, impleading the State of U. P. and the Gaon Sabha concerned, inter-alia pleading that the name of Defendant No. 3, Satya Narain has been wrongly entered in the revenue records. The Defendant No. 3, Satya Narain also instituted a Suit No. 49 under Sections 229-B/209 of the Act for decelaration of his rights against Sia Ram etc. , on the basis of his possession over that land, in dispute, perfecting his title. The learned trial Court vide its order and decree, dated 14-4-83, decreed the suit of Satya Narain. In appeal, the decree of the learned trial Court was reversed and the suits were remanded to it for decision, afresh on merits according to law. The learned trial Court, vide its decree, dated 31-10-1991, dismissed the suit of Satya Narain and ordered for expunction of the entry of his name from ziman-9. He went up in two first appeals before the learned Additional Commissioner, who has allowed the same, dismissing the Suit No. 4 while decreeing the Suit No. 49. It is against these decrees that the instant second appeals have been preferred by the palintiffs, Sia Ram etc. before the Board. I have heard the learned Counsel for the appellant and have also perused the record on file. None responded for the respondents despite due notice and repeated calls at the time of hearring and therefore, this Court was left with no option except to proceed ex parte. Assailing the impugned judgement decree, the learned Counsel for the appellant contended that the impugned decree, passed by the learned Court of first appeal is bad in law, as the same is against the materials on record; that the approach of the learned lower appellate Court is perverse, as the class-9 entry on the basis of which the appellant, Satya Narain is claiming his rights was fully established to be not in accordance with law and Rules on the subject, which has rightly been discarded by the learned trial Court; that since the adverse possession of Satya Narain was admittedly not continuous and there cannot, at any stretch of imagination be any presumption about its continuity, the learned Additional Commissioner has without considering this material aspect of the case, passed the decree in favour of Satya Narain which is clearly no decree in the eyes of law; that since the finding of the learned trial Corut to the effect that the plaintiff was a member of the family and relation, his possession cannot, at any stretch of imagination, be termed as adverse, was not upset by the learned Court of first appeal and therefore, its acceptance of the rights of trespasser is wholly illegal; that the impugned judgment and decree vitiate in law for non-consideration of the oral evidence, by the appeallant; that the learned Court below has grossly erred in allowing the appeals as the irrigation slips etc. filed by the trespasser are misconcieved, as the same has not been proved to relate to the land in dispute; that since no PA-10 was ever issued nor served, the learned lower appellate Court has committed an error of law in denying the rights to the appellant on the basis of class-9 entries in favour of Satya Narain, which too were not in consonance with law and Rules on the subject; that since adverse possession of Satya Narain was not proved to be continuous, uninterrupted and without the consent of the recorded tenure holder, the learned Additional Commissioner is clearly unjustified in accepting the claim of the Satya Narain; that since the decree, passed by the learned trial Court was based upon the findings, duly arrived at after due and proper appreciation of evidence on record, upsetting the same without considering the evidence on record, is clearly against all connons of law; that in any view of the matter, since the learned lower appellate Court has mis-contrued and his-interpreted the evidence on record, both the oral and documentary and has, in fact, based its decree on surmises and conjectures, the impugned order is clearly illegal, perverse and without jurisdiction, which cannot be allowed to sustain and these second appeals are liable to be allowed in toto. In support, reliance has been placed on the case laws, reported in 1965 ALJ 339; 1961 AWC 25 (R); AIR 1952 Alld. 527; 1978 RD 118 and 1980 RD 250. I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record on file. In the instant case, the appellant is the recorded tenure holder, whereas the respondent has claimed his rights on the basis of his adverse possession. A bare perusal of the record on file clearly reveals that the learned trial Court after completting the requisite trial, framed as many as six issues and came to the conclusion that Satya Narain has bitterly failed to substantiate his claim and therefore, he ordered for expunction of the entry of his name from ziman-9, dismissing his Suits No. 49. It held that Satya Narain could not prove his continuous, and hostile uninterrupted and without the Counsel of the recorded tenure holder adverse possession on the land, in dispute so as to mature his rights by prescription of law. This finding has been arrived at after due and proper appreciation of evidence on record. To the controary, the learned Additional Commissioner has disturbed this finding, recorded by the learned trial Court on the basis of oral statement of the lekhpal concerned to the effect that the name of Satya Narain is entered in Ziman- 9 with effect from 1369-FL. He is of the opinion that the absence of the entry of his name in various years are solely due to the fact of survey record operation during which no khasra was prepared and therefore, he came to the conclusion that Satya Narain has perfected his title on the basis of his adverse possession for the prescribed statutory period and as such, allowed the appeals of Satya Narain and rejected the claim of Sia Ram etc.
(3.) HAVING given my thoughtful consideration to the matter in question. I come to the conclusion that the learned trial Court has dealt with the matter in question, very analytically and logically in the right perspective of law, while the learned Additional Commissioner has swayed away on illogical and flimsy grounds. The findings, recorded by the learned trial Court have been arrived at after due and proper appreciation of evidence on record, in its right perspective of law with which I entirely agree. It is pertinent to mention here that in the case of adverse possession the continuous and hostile possession uninterrupted and without the consent of the recorded tenure holder, is a legal and mandatory requirement of which no presumption can be attached and which is rather lacking in the instant case. The learned trial Court has, therefore, very rightly dismissed the claim of Satya Narain, who has miserably failed to substantiate his claim and therefore, agreeing with the views, expressed by the learned trial Court, I intend to accept the calim of Sia Ram etc. instead of the claim of Satya Narain and as such, these appeals very richly deserve to be allowed in toto. Consequently, both these second appeals are accordingly, allowed, the impugned judgment and decree, passed by the learned Additional Commissioner are hereby set aside and that of the learned trial Court are hereby restored and maintained. Let records be returned forthwith, to the Courts concerned.;