BABU RAM - (1.) THIS is a second appeal filed by Ashfaq Ahmad Khan alias Bechu Khan against the judg­ment and decree dated 1-9-1998 passed by the learned Additional Commissioner, Mirzapur Division, Mirzapur in appeal No. 4/4. By the impugned order, the learned Additional Commissioner has al­lowed the appeal, set aside the order dated 6-1-1998 passed by the trial Court and remanded the case to it for fresh decision.
(2.) BRIEFLY stated, the facts of the case are that Hashim Khan alias Kallu Khan and two others sons of Shafi Khan in­stituted a suit for declaration that they were Bhumidhars of plot Nos. 1548 area 0-19-0 and plot No.1674 area 0-19-0 in village Chintamanpur, tappa 84, pergana Kantit, tehsil and district Mirzapur. They pleaded that their father, Shafi continued to be in possession over the land in ques­tion for about 35 years; that his possession was open, hostile and to the knowledge" of the defendants; that by being in possession for over 12 years, Shafi had acquired sir-dari rights and by the operation of law, became Bhumidhar; that Shafi Khan died about six years back and the plaintiffs stepped into the shoes of their father; that the plaintiffs had become Bhumidhars of the land in question; that they came to know that their names were being recorded only in Ziman-9 and hence necessity for the institution of the suit. They prayed for being declared as Bhumidbars with transferable rights of the land in question. Ashfaq and others contested the suit on various grounds and denied the plaint allegations. They pleaded that the plaintiffs and defendants belong to the same family; that the plaintiffs and defen­dants were recorded co-tenure holders of the land in other Khatas; that taking ad­vantage of this, the plaintiffs father managed to get his name recorded in un­lawful manner in Zirnan-9. They asserted that the plaintiffs did not remain in posses­sion for over 12 years and did not acquire any rights. The trial Court gave an oppor­tunity to both the parties to adduce evidence. The plaintiffs produced Khatauni of 1371-F Khaiauni pt. II of the years 1393 to 1398-F and parhna abpasi for the years 1386 to 1394-F. The trial Court discussed the matter-in detail and found that the plaintiffs did not adduce any evidence to prove their possession from 1371 to 1382-F; that the entries made in Khatauni 1371 to 1373-F on the basis of the order dated 23-2-1964 was not in ac­cordance with the provisions of the Land Records Manual and did not carry any weight in the eye of law. It held that the plaintiffs had failed to prove their posses­sion for over 12 years and dismissed the suit of the plaintiffs. Feeling aggrieved by this order, Hashim Khan alias Kallu Khan and others filed an appeal before the learned Additional Commissioner which was allowed and the suit was remanded to the trial Court for fresh decision. Feeling aggrieved by this order, Ashfaq Ahmad Khan and others have now Come up in this second appeal before the Board. I have heard the learned counsel for the parties and have also perused the record of the case.
(3.) THE learned counsel for the appel­lant has argued that the trial Court after discussing the entire material on record came to the definite conclusion that the plaintiffs have failed to establish their con­tinuous possession for over 12 years and hence they have not matured any rights on the basis of the adverse possession. He submitted that the plaintiffs and the defen­dants were recorded co-tenants in other Khatas and the plaintiffs' father by playing fraud got the entries of Ziman-9 in his name which was not in the knowledge of the defendants. He further submitted that the plaintiffs did not adduce any evidence to show that they continued to be in inces­sant adverse possession for over 12 years. He invited my attention towards the fact that the plaintiffs did not adduce any Khasra or Klutauni to show their possession from 1373 to 1382-F. He stated that the learned Additional Commissioner was ab­solutely incorrect in observing that the contention of the plaintiffs that from the documentary evidence their continuous possession from the time of their father was proved. He further stated that the entry in Ziman-9 had not been made in accordance with the provisions of the Land Records Manual and the provisions of paras A-80, A-81, A-82 and A-102-C of the Land Records Manual having been contravened, the entry would not be con­sidered to be an entry in the eye of law and no rights would flow from such type of entry. He submitted that as the very start of the entry was unlawful and there was no evidence of any type to show the plaintiffs possession from 1373 to 1382-F, the ques­tion of computing the period of limitation did not arise. According to him, the parties being co-tenure holders, the plaintiffs father played fraud and got incorrect entry in Ziman-9 made by keeping the defen­dants in ignorance. He urged that the learned trial Court has rightly dismissed the suit of the plaintiffs and there was no need to pass an order of remand.;