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1977 DIGILAW 677 (ALL)

Gauri v. Pherai

1977-12-14

S.MUBARAK HASAN

body1977
JUDGMENT S. Mubarak Hasan, Member. - This is a second appeal against the judgment and decree dated December 9, 1968 passed by Additional Commissioner, Gorakhapur in appeal against the judgment and decree dated July 3, 1967 passed by Judicial Officer, Basti in a case under Sec. 229-B/209 of the UPZA and LR Act. 2. Pherai and Jugun plaintiffs filed suit under Sec. 229-B/209 of the UPZA and LR Act, on July 6, 1966 alleging that formerly they were subtenants of plot No. 121/2 area 7 biswas, 1 dhur and had acquired Sirdari rights in the same subsequently and remained in possession. They also allowed that the defendant first set got fictitious entry made in his favour in class 9. They prayed for a declaration that they were Sirdar of the plot in suit. In the alternative they prayed for possession also if they were found to be out of possession. Gauri defendant contested the suit alleging that the plaintiffs were never sub-tenants of the disputed plot nor were they in possession. He pleaded that he has been in possession from before the dead of vesting and acquired Sirdari rights in the disputed plot. He also pleaded that the rights of the plaintiffs, if any had extinguished. He also pleaded having acquired Sirdari rights under Section 210 of the UPZA and LR Act. 3. On July 3, 1967, the trial court dismissed the plaintiffs suit. Holdings Act, 1960. 4. On December 9, 1968, the lower appellate court allowed the appeal set aside the judgment and decree passed by the trial court and decreed the plaintiff's suit. It held that the plaintiffs were Sirdars of the land in suit and had been in possession throughout and that the defendant had not been in possession. 5. Firstly, the learned counsel for the appellant argued that this suit was filed on July 6, 1966, and the compensation statement was prepared on February 30. 1966. He contended that the compensation statement, having been prepared during the pendency of this suit is of no value and it will not be deemed to be final. Secondly he argued that the lower appellate court has not considered the entries in the extracts of Khasras of 1342, 1343, 1344, 1345 and 1348 faslils and hence its finding regarding possession is vitiated under the law. Thirdly, he argued that the plaintiffs failed to prove the contract of subtenancy. Secondly he argued that the lower appellate court has not considered the entries in the extracts of Khasras of 1342, 1343, 1344, 1345 and 1348 faslils and hence its finding regarding possession is vitiated under the law. Thirdly, he argued that the plaintiffs failed to prove the contract of subtenancy. Lastly he argued that the lower appellate court did not weight evidence properly and hence erred in decreeing the plaintiff's suit. 6. The learned counsel for the respondent argued that the preparation of compensation statement after the filing of this suit does not made any difference. He contended that the compensation statement duly signed and sealed became final under Section 240-J(2) of the UPZA and LR Act. He further argued that the defendant had received compensation also and his rights in the disputed land had extinguished. He also argued that the lower appellate court after considering the entire oral and documentary evidence including the extracts of Khasras of 1342, 1343, 1344, 1345 and 1348 faslis has given a finding of act that the plaintiffs had been in possession throughout and that the defendant had not been in possessions. He contended that this finding of fact being based on correct appraisal of evidence on record cannot be assailed. He also argued that the plaintiffs had proved that they were formerly subtenants of the land in dispute. He further argued that after the preparation of compensation statement which had become final, the question whether the plaintiffs were formerly sub-tenants of the disputed land had become immaterial. 7. I have considered the arguments of the learned counsels of the parties and have perused the record. In the Khatauni of 1348 Fasli, the plaintiffs were recorded over the disputed plot with a period of 4 years as sub-tenants. In the Khatauni part II of 1359 Fasli, the plaintiffs were recorded as sub-tenants with a period of the 15 years. The entries in the thest Khatauis will be presumed to be correct. From the statements of P.Ws. and so also from the entries in the Khataunis it is established that the plaintiffs were formerly sub-tenants of the disputed plot. Urban Area Zamindari was abolished w.e.f. July 1, 1962. Plaintiffs filed extract of Khatauni of 1369 to 1371 Faslis in which they were recorded as Sirdars of the disputed plot including other plots. From the statements of P.Ws. and so also from the entries in the Khataunis it is established that the plaintiffs were formerly sub-tenants of the disputed plot. Urban Area Zamindari was abolished w.e.f. July 1, 1962. Plaintiffs filed extract of Khatauni of 1369 to 1371 Faslis in which they were recorded as Sirdars of the disputed plot including other plots. In the extract Khasra of 1373 Fasli the plaintiffs were recorded over the disputed plot in the main column. After considering the entries oral and documentary evidence including the entries in the Khasra of 1342 to 1345 Fasli the lower appellate court gave finding of fact that the plaintiffs throughout remained in possession and that the defendant had not been in possession. This finding of fact being based on correct appraisal of evidence on record cannot be assailed. Admittedly there were proceedings under Section 240-G in which the plaintiffs were held to be Sirdars of the disputed land. Compensation was received by the defendant. A compensation statement was prepared which bore the signature and seal of the compensation officer. The compensation statement so signed and sealed become final under Section 240(2) of the UPZA and RL Act. The fact that the compensation statement was prepared after the filing of the suit does not make any difference. The rights of the defendant, if any extinguished after the preparation of the compensation statement. The lower appellate court rightly held that the plaintiff were Sirdars of the land in suit and had been in possession. There is no illegality in the judgment and decree passed by the lower appellate court. Appeal has no force. It is accordingly, dismissed with costs.