Janardan Sahai, J. - (1.) A suit under section 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act was instituted by the petitioner Deo Narain against Mahesh, Durga, Manbodhan, Gaon Sabha and the State. The case of the petitioner Deo Narain is that Durga was Ahdivasi of the disputed land and on the payment of 10 times of lease premium, he had acquired humidhari right whereafter he transferred the disputed land to the petitioner by a sale deed in the year 1964. The suit was contested by Mahesh and Manbodhan. Their case was that Durga was never in possession of the disputed land and that their, uncle Ram Bhawan was the sirdar of the land and after the death of Ram Bhawan the defendants are in continuous possession and have acquired rights under section 210 of the U.P. Zamindari Abolition and Land Reforms Act, hereinafter called as 'the Act'. Before the Trial Court the plaintiff-petitioner examined himself and Durga and one more witness the Assistant Registrar Kanungo. The defendant examined Mahesh, Ramhit, Balkrishna, Manbodhan and Khelaiya. Both the parties filed documents. The plaintiff-petitioner filed the extracts of the khasras 1359, 1362, 1363, 1367,1368, 1371 and 1372 and khataunis of several years and bhumidhari sanad and sale deed. The defendant respondent filed khasras of several years in which defendants are shown to be in possession. The Trial Court held that the entries in the khasras from 1366, 1369, 1370, 1372, 1373 and 1374 were not supported by issuance of PA-10 and were not legal and therefore did not consider the same. The copy of the order of the Compensation Commissioner dated 23.4.1957 in proceedings under section 240-G of the U.P. Zamindari Abolition and Land Reforms Act as well as the copy of the statement of Durga recorded in that case were also filed. The Trial Court held that Durga was Adhivasi and thereafter became bhumidhar of the disputed land and consequently had a right to execute a sale deed and that defendants could not establish their possession. The suit was decreed. On appeal filed by the defendants the Additional Commissioner reversed the Trial Court's decree. The Additional Commissioner placed reliance upon the statement of Durga recorded in the present suit as well as that recorded in the proceedings under section 240-G of the Act before the Compensation Commissioner and held that Durga had admitted that he was never in possession. The Additional Commissioner did not consider the other evidence on record and his finding is solely based on the alleged admission of Durga made in the compensation case as well as that in the present suit. The petitioner Deo Narain preferred a second appeal, which was dismissed by the Board of Revenue by its order dated 10.2.1986. The order of the Additional Commissioner dated 26.10.1981 and the order of the Board of Revenue dated 10.2.1986 are challenged in this writ petition.
(2.) I have heard Shri Rajesh Ji Verma assisted by Shri Harish Chandra Singh learned Counsel for the petitioners and Shri Dhruv Narain assisted by B.K. Narain Counsel for respondent No. 3 and Shri Hare Ram Mishra Counsel for impleaded respondents.
(3.) The submission of Shri Rajesh Ji Verma Counsel for the petitioners is that the Additional Commissioner has misconstrued the statement of Durga. According to him, Durga never admitted the possession of Mahesh and Manbodhan. Copy of the statement of Durga recorded in the proceedings under section 240-G of the Act before the Compensation Commissioner has been annexed along with the supplementary counter affidavit. A perusal of the statement shows that Durga admitted that Ram Bhawan was in possession but there is nothing in his statement to indicate that he admitted possession of Mahesh or Manbodhan. The possession of Mahesh and Manbodhan cannot be clubbed with that of Ram Bhawan. The statement was recorded in the year 1956. Objections of the respondent in the compensation case were dismissed by order of the Compensation Commissioner dated 23.4.1957. The Board of Revenue has held that in view of the provisions of sections 240-B and 240-C of the U.P. Zamindari Abolition and Land Reforms Act, Manbodhan and Ram Bhawan lost their rights and Durga became sirdar, of the disputed land. It has held that the defendants were in continuous possession even after extinction of their rights under section 210 of the U.P. Zamindari Abolition and Land Reforms Act. So far as the statement of Durga in the present suit is concerned, in his examination-in-chief Durga has categorically stated that he was in possession over the disputed land and after the sale in his favour the petitioner Deo Narain has been in possession. Counsel for the respondent however drew my attention to a portion of the statement of Durga in cross-examination and according to him the portion referred to consists of two parts the first of which pertains to his previous statement in the compensation case but the latter part in which he has admitted that Ram Bhawan and Manbodhan were in possession is a statement made in the present suit. Counsel for the petitioner submitted that the earlier portion of statement of Durga referred to by the Counsel for the respondent is with reference to tire statement given in the compensation case with which he had been confronted. From the reading of the statement of Durga as a whole it would be clear that he has categorically stated in the examination-in-chief that he was in possession and after the sale Deo Narain was in possession. In the cross-examination when he was asked having given any statement in the compensation case he denied having made any statement. He was then confronted with his previous statement in the compensation case. The law of admissions is dear. An admission has to be categorical and unequivocal. In the present case there was no such unequivocal admission. In the examination-in-chief Durga had asserted his possession and that of his vendee. Even if there is a stray sentence in his cross-examination that Ram Bhawan and Manbodhan were in possession it appears to have been given in the context of the statement in the compensation case with which he had been confronted. The statement of Durga cannot be treated as admission of the defendant's possession and the suit could not have been dismissed on that ground. Apart from the statement of Durga nothing else has been considered by the Additional Commissioner or by the Board of Revenue in recording the finding that Durga was not in possession and that defendants were in possession. There was other material on record including the oral evidence, which had to be considered. It has therefore became necessary to remand the case for a fresh decision.;