S.P.PANDEY, J. - (1.) THIS a plaintiff's second appeal preferred against the judgment and order dated 24-4-19S9 passed by the learned Additional Commis­sioner, Moradabad Division, Moradabad arising out of an order dated 28-11-1988 passed by the learned trial Court in a suit under Section 229-B of the U.P.Z.A. & L.R. Act.
(2.) BRIEF and relevant facts of the case are that the plaintiffs Lalloo and Bhopal instituted a suit under Section 229-B of the U.P.Z.A. and L.R. Act with the prayer that the plaintiff No. 1 Lalloo be declared Bhumidhar with transferable rights over the 1/6 share and plaintiff No. 2 be declared Bhumidhar with transferable rights over the 5/6 share of the disputed holding as detailed at the foot of the plaint, as the names of the plaintiffs arc con­tinuously recorded in class IX of the Khatauni and Khasra since 1367 fasli. The learned trial Court, after completing the requisite trial, dismissed the aforesaid suit on 26-11-1988. Aggrieved by this order, an appeal was preferred, the learned Addi­tional Commissioner has dismissed the appeal too. Hence this second appeal. I have heard the learned Counsel for the parties and perused the records on file. For the appellant, it was contended that the statement and the admission of the defendant/respondent Chandan Singh has been totally ignored by the learned Courts below, that the witnesses produced on behalf of the contesting defen­dant/respondents has also been ignore by the learned Courts below that the plain­tiff/appellant has fully established his pos­session over the disputed land for more than twenty eight years through revenue records and also through oral evidence, indicating the hostile continueous and ad­verse possession of the plaintiff/appellant over the suit land, that the findings of the learned trial Court are based on conjec­tures and surmises, that there is ample evidence to prove appellant's possession over the disputed holding and the plain­tiff/appellant has acquired sir-dari/bhnumidhari rights over the disputed holding, that the learned Trial Court has erred grossly in disbelieving the documen­tary evidence adduced by the plaintiff/appellant and recorded a erroneous finding, that the learned Additional Commis­sioner has also not properly considered the evidence on record and the extract of Khatauni for the year of 1366 fasli. filed before the first appellate Court has not been considered, while ii is a significant document with regard to possession of the plaintiff/appellant over the disputed hold­ing, that the plaintiff/appellant has fully established the fact, that his possession has been as per the procedure-prescribed by law over the aforesaid suit land. In support of his contention, he has cited the case law reported in 1982. R.J. 59, 1986 A.C.J. 359, 1989 A.W.C. 124, 1994 R.D. 7, 1964 R.D. 237, 1994 R.J. 308. The learned counsel for the respondent submitted that the aforesaid impugned order dated 24-4-1989 passed by the learned Additional Commis­sioner is' just, proper and sustainable, as such it must be maintained, that the ad­verse possession of the plaintiff/appellant has not been continueous hostile and as per the procedure prescribed by law. In support of his contention he has cited the case law reported in 1982 RD 1, 19X0 RD 190, 1981 RD 112. 1983 RD 24, 1994 RD 156, 1969 (S.C.) RD 295 to 297, 1990 RD 214 (H.C.), 1985 RD 397, 1996 RD 39 and 165(H.C.) 1992 RD 75, 1988 RJ 89 to 91, 1987 RJ 105 and 214 to 217. 1959 AIR 57 (S.C.) D.B., 1966 AIR 1718 (S.C.) D.B., 1963 AIR 302 (S.C.) D.B., 1960 AIR 135 (S.C.) D.B., 1981 AIR 1981 (S.C.) D.B., AIR. 1978 Patna 1378, 1994RD388, 1988 CRC 123 (S.C.), 1998 CRC 241 (S.C.), 1994 RD 113 but see page 117, 1975 RD 278, 1979 RD 294, 1995 RD 277 and 1964 AIR1254(S.C).
(3.) I have closely and carefully con­sidered the contentions raised by the learned counsel for the parties and also gone through the records on file. From a perusal of the judgment and order dated 26-11-1988 passed by the learned trial Court, it is crystal clear that it has not properly and lysed, discussed and con­sidered the facts and evidence on records in correct prospective of law. The oral evidence adduced by the parties have not been properly examined. The learned Ad­ditional Commissioner has miserably failed to evaluate the evidence on record in correct prospective of law. The extract of Khatauni of 1366 fasli has not been properly appreciated with regard to pos­session of the plaintiff/appellant over the aforesaid suit land. The conclusion drawn by the learned Additional Commissioner is quite erroneous and against the facts and evidence of the instant case. In fact the instant case needs re-examination of the claims of the parties in the light of their pleadings and evidence on record.;