Janardan Sahai, J. - (1.) Chandra Bhan was the recorded tenant of disputed land. A suit under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed by the petitioner alleging that her father-in-law Ram Chander who has died eight years back was in possession. She also claimed to be in possession. In support of her case she filed documentary evidence including some irrigation receipts and khasra extracts. She also led evidence including herself and six witnesses-two of them were Ranjeet Singh and Charan Singh sons of Ram Chander. The suit was contested by Chandra Bhan. The Trial Court dismissed the suit. If found that he possession of Ram Chander started in 1375 Fasli and if it is clubbed with the possession of the petitioner the required period of possession of 12 years was not established. The Additional Commissioner dismissed the first appeal. The petitioner filed a second appeal, which was allowed by the Board of Revenue by order dated 28.5.1992. The Board of Revenue found that the possession of Ram Chander father-in-law of the petitioner and that of the petitioner could be tacked. It also held that oral evidence adduced by the. petitioner had not been considered by the Trial Court or by the First Appellate Court. The Board or Revenue however gave a finding that it was not in a position to determine the date from which the possession of the petitioner sorted. Despite this finding the Board of Revenue allowed the second appeal and set aside the judgment of the Trial Court and of the Additional Commissioner in first appeal. A review application was then filed by respondent Nos. 6 to 9 who had been substituted in place of deceased Chandra Bhan. The review application of the respondent Nos. 6 to 9 was allowed by the Board of Revenue by the impugned order dated 7.10.1993. Aggrieved the petitioner has filed the present writ petition. I have heard Sri Hemant Kumar Counsel for the petitioner and Sri Radhey Shyam Counsel for respondent Nos. 6 to 9.
(2.) It was submitted by the petitioners Counsel that neither of the Courts below has considered the oral evidence of the petitioner. A perusal of the order of the Board of Revenue in review indicates that the Board found that the possession of Ram Chander began in 1375 Fasli on the basis that the earliest khasra filed in proof of possession by the petitioner pertains to that year. However, no reference to any oral evidence has been made in the order passed in review. It is no doubt true that the earlier order passed by the Board of Revenue allowing the second appeal is also unsustainable. The Board of Revenue had recorded the finding that neither the Trial Court nor the Appellate Court had considered the oral evidence. The Board of Revenue then ought to have remanded the case to the Additional Commissioner to the Trial Court for consideration of the oral evidence. It has been held in Shivnandan v. Board of Revenue, 1980 RD 73, that adverse possession can be proved by documentary evidence as well as by oral evidence. The Board of Revenue could not have allowed the second appeal without a finding that the petitioner was in possession for the prescribed period and no suit was instituted within time. Moreover, if at all the appeal of the petitioner was allowed, the operative portion ought to have been indicated as to whether the suit had been decreed or dismissed which the operative portion of the order of the Board of Revenue dated 28.5.1992 does not indicate. On the finding recorded by the Board of Revenue it was case for remand.
(3.) Before me it is submitted by Sri Radhey Shyam Counsel for respondent Nos. 6 to 9 that oral evidence has been considered by the Additional Commissioner. He took me through the order of the Additional Commissioner in which the statement of the petitioner has been considered and it has been found that there were certain discrepancies in her statement on account of which she could not be relied upon. However, there is no discussion about the oral evidence of other witnesses. Counsel for the petitioner along with the supplementary rejoinder affidavit has filed copies of statements of two witnesses viz., Charan Singh and Ranjeet Singh. These two witnesses are the sons of Ram Chander. They have stated that on the death of Ram Chander the petitioner was in possession. The Additional Commissioner has also referred to the fact that six witnesses were examined in support of the petitioner's case but has not considered their is evidence.;