S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331 of the UPZA and LR Act (hereinafter referred to as the Act) preferred against the judgment and decree dated 25-9-1995/6-10-1995 passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 47/340 of 1984-85, allowing the same and reversing the judgment and decree, dated 1-12-1984 passed by the learned trial Court in a suit under Section 209 of the Act.
(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that the plaintiff Kailash Narain instituted a suit under Section 209 of the Act against the defendants, State of U.P. and India Abrihome Krised Mishan for ejectment of the defendant No. 2 from that part of plot No. 2481/2 which has been shown in red ink on the map annexed to the plaint, inter alia pleading that since the defendant No. 2 unauthorisedly and illegally occupied one acre area shown in red ink of plot No. 2481/2, he is liable to ejectment therefrom. On notice, the defendants contested the suit, denying the allegations. The learned trial Court, after the completing the requisite trial, decreed the suit of the plaintiff and ejected the defendant No. 2 from the area in dispute, vide its decree dated 1-12-1984 against which an appeal was preferred before the learned Additional Commissioner, which was allowed, vide his decree dated 16-4-1986. A second appeal was preferred by Kailash Narain before the Board which was allowed and the fist appeal was remanded for decision afresh, vide its order dated 23-3-1984. On remand, the learned Additional Commissioner, vide his decree dated 25-9-1995, allowed the same and set aside the decree dated 1-12-1984 passed by the learned trial Court and therefore, it is against this decree that the instant second appeal has been preferred by Kailash Narain before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. Assailing the impugned decree, the learned Counsel for the appellant contended that since the order dated 16-4-1986 passed in first appeal was set aside by the Board, the finding of the learned court of first appeal that the same is correct, is perverse and illegal in the eyes of law; that since the title has been declared in a suit under Section 209 of the Act which is not at all possible in law, after accepting the fresh documentary evidence ex-parte, the learned Additional Commissioner has grossly erred in doing so because he ought to have dismissed the suit of the plaintiff instead of such declaration; that since no opportunity of rebuttal of fresh evidence was afforded to the appellant, the impugned judgment and decree based upon the same, is bad in law; that in any view of the matter, the impugned judgment and decree passed by the learned Additional Commissioner is illegal, perverse and without jurisdiction which cannot, at any stretch of imagination, be allowed to sustain and this second appeal very richly deserves to be allowed and the first appeal remanded to him for decision, afresh, no merits, after affording an opportunity of rebuttal of the additional documentary evidence to the appellant. The learned Counsel for the respondent, in reply, urged that since the report of the commissioner shows the fencing being very old and no trespass by the respondent has been detected, in the facts and circumstances of the instant case as well as the evidence on record, the learned Court of first appeal was perfectly justified in rendering the impugned judgment and decree, especially when no evidence of any sort was adduced in rebuttal by the appellant till the date of the delivery of judgment, despite due notice and therefore, this second appeal having no substantial question of law involved, very richly deserves dismissal outright.
(3.) 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. The crux of the matter in question in whether or not any opportunity of rebuttal of the additional evidence filed was afforded to the appellant and the compliance of the directions issued by the Board while remanding the first appeal has been ensured by the learned Additional Commissioner. A bare perusal of the record on file clearly reveals that after remand, the first appeal was heard on merits and 31-8-1995 was fixed for orders. On 31-8-1995, defendant No. 2 filed some documents in evidence and the learned Court, vide its order dated 4-9-1995, ordered that rebuttal and written arguments be filed by 16-9-1995. On this date, due to paucity of time, orders could not be delivered and 25-9-1995 was fixed for delivery of the same on which date it was so delivered. It is noticeable that on the application dated 31-8-1995, the learned Counsel for the appellant himself objected and sought for an opportunity of rebuttal which was so afforded and he himself failed to avail such opportunity till the date of the delivery of judgment and therefore, it does not lie in his mouth to say that no opportunity of rebuttal has been afforded to him. On merits too, the impugned judgment and decree appear to have been passed in correct perspective of law. It has come on the record that the fencing is rather very old and the tree and the constructions are also 15-20 years old. So far as the compliance of the directions of the Board are concerned, it has also been correctly ensured by the learned Court of first appeal. The learned Additional Commissioner has, in fact, dealt with the matter, in question through and through in an analytical and logical manner and therefore, I do not find any reason to differ with the views expressed by him. No substantial question of law is rather involved in this second appeal as the findings recorded by him are will founded and have been arrived at after due and proper appreciation of evidence on record and therefore, I, in the facts and circumstances of the instant case as well as the evidence on record, am of the considered opinion that this second appeal having no force, very richly deserves dismissal outright as nothing remains to be decided in it.;