S.P.PANDEY,J. - (1.) THIS is a second appeal under Section 331(4) of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 4-12-1989, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 121/261 of 1987-88/Banda, allowing the same and reversing the judgment and decree, dated 21-8-1988, passed by the learned trial Court in suit No. 105 under Section 229-B of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Ram Sajiwan instituted a suit under Section 229-B of the Act for declaration of his rights as bhumidhar over the land in dispute, on the basis of perfection of his rights by adverse possession, praying for the expunction of the name of the recorded tenure-holder, Bans Gopal as well. On notice, the defendants contested the suit, denying the allegations as well as possession of the plaintiff and catagorising the entry in varg-9 in his favour as fictitious and farzi, while the Gaon Sabha and the State did not contest the suit. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff vide its judgment and decree, dated 21-8-1988. The defendant, Bans Gopal etc. went up in appeal before the learned Additional Commissioner, who has allowed the same, vide his judgment and decree, dated 4-12-1989 and therefore, it is against the judgment and decree that the instant second appeal has been preferred by the plaintiff, Ram Sajiwan 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 decrees, the bone of contentions of the learned Counsel for the appellant inter alia, in a nut shell, are firstly, that since the first appeal has been allowed without due and proper consideration of evidence, both oral as well as documentary, on record and the impugned judgment and decree has been rendered without reversing the findings, recorded by the learned trial Court, after due and proper appreciation of evidence on record, that the same is bad in law, being based upon surmises and conjectures; secondly, that since the entries of varg-9 in favour of the plaintiff are continuous in accordance with law on the subject, the learned trial Court, in the facts and circumstances of the instant case, was perfectly justified in decreeing the suit of the plaintiff and the impugned judgment and decree cannot, at any stretch of imagination, be allowed to sustain and therefore, this second appeal very richly deserves to be allowed in toto. In support, reliance has been placed on the case-laws, reported in 1987 RD 44 and 1985 RD 438. The learned Counsel for the respondent, in reply, urged that since no crop was sown during various on the land, in dispute by the plaintiff, the learned Additional Commissioner, has rightly inferred otherwise that the plaintiff was not in possession of the same in those years and therefore, in the facts and circumstances of the instant case as well as evidence on record, he was perfectly justified in allowing the first appeal and dismissing the suit of the plaintiff and as such, this second appeal, having no force, very richly deserves dismissal outright. In support, reliance has been placed on the case-laws, reported in 1977 RD 224, 1985 RD 90 and 325 and 1975 RD 278.
(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 substantial question of law, involved in the instant appeal, on the pleadings of the parties concerned, is whether or not the findings, recorded by the learned Court below have been arrived at after due and proper appreciation of evidence, both oral as well as documentary, on record in correct perspective of law. As a matter of facts, the learned trial Court decreed the suit of the plaintiff on the basis of its view that the entry of varg-9, in favour of the plaintiff have been made. in accordance with the rules, on the subject, maturing his rights and title on the land, in dispute, by prescription of law, while the learned Additional Commissioner, has reversed the findings on the basis of the possession of the plaintiff, being interrupted and not continuous. For such a reversal, due and proper appreciation of evidence, both oral as well as documentary, on record ought to have been considered in an analytical and logical manner, in correct perspective of law, which is badly lacking on the part of the learned Additional Commissioner. For maturing the rights by prescription of law, the possession should be continuous, hostile and uninterrupted and a positive finding in this respect is necessary. The learned Court of first appeal has, in fact, failed to do so and therefore, without commenting upon the merits of the case, I, in the facts and circumstances of the instant case as well as evidence on record, am of the considered opinion that this is rather a fit case for remand to the learned Additional Commissioner, for decision afresh, on merits, according to law, after affording due and proper opportunity of being heard to the parties, concerned.;