S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 22-1-1986/30-1-1986, passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal Nos. 209/216/100 of 1984-85/Banda, arising out of the judgment and decree, dated 8-6-1982, 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 second appeal are that the plaintiff, Ramdeo, instituted a suit under Section 229-B of he Act against the defendants, Raghubir etc., for declaration of his rights as bhumidhar of the land, in dispute and for expunction of the name of the defendant No. 1 from the revenue records, inter alia, pleading that since the plaintiff was shikmi tenant of the land, in dispute, prior to the abolition of zamindari, he become its adhivasi, and thereafter bhumidhar after the abolition of the same, by prescription of law and the defendant No. 1 has nothing to do with it. Summons could not be served upon the defendant No. 1, as it was reported that he did not live in the village, concerned, but lived at Gorakhpur. The Gaon Sabha, concerned and the State did not contest the suit of the plaintiff. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, vide his judgment and decree, dated 8-6-1982, against which an appeal was preferred by the plaintiff before the learned Additional Commissioner, who has allowed the same and decree his suit, vide the judgment and decree, dated 22-1-1986/30-1-1996 and therefore, it is against this judgment and decree that the instant second appeal has been preferred by the defendant before the Board. I have heard the learned Counsel for the parties and have also perused the record, on file. The bone of contentions of the learned Counsel for the appellant, inter alia, in a nut shell, are, firstly, that since no notice was served upon the appellant and the vakalatnama, filed on his behalf as well as his signatures on the order-sheet, dated 25-9-1985 and the vakalatnama were forged, the impugned order is clearly ex- parte illegal and without jurisdiction in the eyes of law; secondly, that since the findings, recorded by the learned trial Court, while dismissing the suit of the plaintiff were not reversed or discarded, the learned Additional Commissioner has grossly erred in rendering the impugned judgment and decree; thirdly, that since the name of the appellant is entered in the revenue record and there is presumption of correctness of such old entries, the burden of proving otherwise lay heavily on the shoulders of the plaintiff, who has miserably failed to discharge the same as the solitary entry of class 9 in 1366F, made in his favour, does not confer any right, tittle or interest to him and therefore, the impugned order, being illegal, ex-parte, perverse and without jurisdiction, cannot, at any stretch of imagination, be allowed to sustain and this second appeal very richly deserves to be allowed in toto. In support, reliance has been placed on the case-laws, reported in 2000 CRC 183 and 91, 1985 RD 90 and 325, 1993 RD 147, 1990 RD 165, 2004 RD 287. The learned Counsel for the respondent, in reply, urged that in the facts and circumstances of the instant case as well as evidence on record, the learned Additional Commissioner was perfectly justified in decreeing the suit of the plaintiff and rendering the impugned judgment decree and therefore, this second appeal, having no force, 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 relevant records, on file. On the pleadings of the parties, concerned, the following substantial questions of law emerges out for decision, in the instant second appeal: “(1) Whether or not the findings, recorded by the learned Court below have been arrived at, after due and proper appreciation of evidence on record, in correct perspective of law? (2) Whether or not the impugned order has been rendered by the learned Court, below, after affording due and reasonable opportunity of being heard and adducing evidence, if any, to the parties, concerned.?'' As a matter of fact, that judgment and decree, passed by the learned trial Court is, no doubt, ex-parte, as no notice could be served upon the defendant and so is the case before the learned Additional Commissioner. The Vakalatnama, filed on his behalf by the aolvocate concerned was later on withdrawn and therefore, it could not safely be said that due and reasonable opportunity of being heard, has been afforded to him to have his say or adducing evidence, if any. The contention of the appellant is that his signatures both on the vakalatnama as well as the order-sheet, dated 25-9-1985 are forged, which is itself proved for the same reason. Since, now the appellant has come before this Court, I, in the facts and circumstances of the instant case, am of the considered opinion that due and reasonable opportunity of being heard and adducing evidence, if any, should be afforded to him to have his say in the interest of justice as well as in view of the settled principle of law that none should be condemned unheard and therefore, I, without commenting upon the merits of the case, am of the considered view that this is rather a fit case for remand to the learned trial Court for decision, afresh, on merits, according to law, after affording due and reasonable opportunity of being heard and adducing evidence, if any, to the parties, concerned. Needless to say, since this is rather one of oldest pending cases, the learned trial Court is, at least, expected to dispose it of on merits expeditiously.;