- (1.) M. Devraj, J. This second appeal has been filed against the judgment and decree dated 24-12-2001 passed by the Additional Commissioner, Judl. , Moradabad Division in appeal No. 22 of 99-2000, confirming the judgment and decree dated 30-11-99/6-12-99 passed by the SDO, Najibabad in suit No. 33/99, under Section 229-B, ZA & LR Act.
(2.) BRIEFLY stated the facts of the case are that Mohd. Yaseen and others filed a suit under Section 229-B, ZA & LR Act claiming bhumidhari over an area of 9-6-0 stating that though the area mentioned in the sale deed is 5-6-0 but actually as per the boundaries/mentioned in the sale deed it is 9-6-0. This case was contested by the defendants. The SDO framed 7 issues and decreed the suit of the plaintiffs on 30- 11-99. An appeal was filed against this order of the SDO in which the Additional Commissioner, Judl. Moradabad Division has dismissed the appeal vide the order dated 24-12-2001. Hence, this second appeal. Heard the Counsels for the parties at length and gone through the file. The Counsel for the appellants argued that originally Shukdeo was the owner of the plot in dispute and the total area of the disputed land is 21-10-0. The plaintiffs/respondents purchased 5-6-0 and the appellants purchased 16-4-0. The plaintiffs filed a suit under Section 229-B, ZA Act claiming rights over the land in dispute i. e. 9-6-0 on the basis of boundaries mentioned in the sale deed though the area mentioned in the sale deed executed in favour of the plaintiffs was only to the extent of 5-6-0. The trial Court has illegally decreed the suit of the plaintiffs and the lower appellant Court also erred in dismissing the appeal. He further argued that as for as agricultural land is concerned the area of plot is clearly mentioned in khatauni and as such boundaries are of no significance rather the area is relevant; he further argued that if there is any dispute regarding the area then the survey map should have been prepared. He drew my attention towards 1995 RD 25/2000 JT (7) SC 379 and 1989 AIR 248.
(3.) ON the other hand, the Counsel for the respondents argued that by mistake the area has wrongly been mentioned in the sale deed executed in favour of them, whereas the boundaries have clearly been mentioned and the report of vakil commissioner was also sought by the trial Court. The Lekhpal of the area has also recorded his statement before the trial Court and all of these show to prove that the plaintiffs are in possession of 9-6-0 area and the sale deed actually meant this much only. Accordingly, both the Courts below have come to concurrent findings; he also argued that as far as survey map is concerned, the appellants neither pleaded in written statement filed before the trial Court nor has raised in the memo of appeal hence, he cannot raise it for the first time during the course of argument before this Hon'ble Court. He drew my attention towards 1997 AIR 50, 1998 RD 128 and 1971 AIR 74. He stressed the point that when there is difference between the area and boundary then the boundary would prevail over area. In reply, the Counsel for the appellant argued that the case laws quoted by the Counsel for the respondents are not relevant to the present case; as in the instant suit the land involved is not abadi but is agricultural for which settlement records and khatuni showing specific area are available; he further argued that Section 91 of Indian Evidence Act provides that the respondents should prove their case on the basis of documents which they have failed to do. Having gone through the file I find though the appellants Counsel has mentioned 7 substantial questions of law in memo of second appeal, he has framed some more substantial questions of law and submitted today but to my mind the only substantial question of law involved in this second appeal is that "in case of agricultural land if there is any discrepancy between area and boundary mentioned in the sale deed which will prevail?" It is clear from the perusal of file that the sale deed executed in favour of respondents clearly says that the land that is being transferred by the said sale deed is 5-6-0; but the claim of respondents/plaintiffs is that as per the boundary mentioned in the sale deed, the actual area which has been transferred is much more than this i. e. 9-6-0 and they should be declared as bhumidhari over this much area of the disputed land. I do not agree with the contention of the respondents that they have inherited rights over an area 9-6-0 on the basis of boundaries mentioned in the sale deed because in the sale deed it has been clearly mentioned that the area is being transferred is 5-6-0 then the respondents have claim and an area 5-6-0 only. It is occasionally seen that in order to avoid stamp duty the boundaries are not correctly mentioned though the area is mentioned correctly. If it is assume that whenever there is discrepancy between the area and the boundaries then the boundaries shall prevail, I strongly believe that it will lead to total chaos. In my view, whenever there is a difference between area and the boundaries, then in variably the area should be taken into account and not the boundary. I hold that the lower Courts have erred in taking contrary view in the matter. Accordingly, this second appeal is allowed, the orders dated 24-12-01 and 30-11-99 passed by the Courts below are set aside and the suit of the plaintiffs is also dismissed. Let the records be returned forthwith to the Courts concerned and this Court's file be consigned to record room.;