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1981 DIGILAW 162 (ALL)

Jawad Ali v. Aliya Khatoon

1981-01-29

D.S.MISRA

body1981
JUDGMENT D.S. Misra, Member - This is a second appeal filed a Jawad Ali against the judgement and decree dated January 20, 1976 passed by the Additional Commissioner, Faizabad Division in Appeal No. 339-A of 1975. 2. The facts giving rise to this appeal are the Smt. Aliya Khatoon and Smt. Razia Khatoon filed a suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act for the ejectment of Jawad Ali on the ground that he was trespasser and liable to ejectment. The suit was contested by Jawad Ali on the ground that he was Sirdar of the land in suit and he took this plea on two grounds. Firstly that he had obtained it from Mohammad Sharif and secondly that by remaining in possession for more than 15 or 20 years and thus he has perfected his title under Section 210 of the U.P. Zamindari Abolition and Land Reforms Act. Both the parties adduced oral and documentary evidence in the trial court and after considering the evidence the trial court decreed the plaintiff's suit. Jawad Ali preferred an appeal before the Additional Commissioner but the learned Additional Commissioner dismissed his appeal affirming the judgement and decree of the trial court. Feeling aggrieved he has filed the second appeal before the Board. 3. I have heard the leaned counsels for the parties and have perused the record. The main contention of the learned counsel for the appellant was that the suit of the plaintiff was time barred. The defendant was in adverse possession of the land in suit since before the date of vesting and that the lower courts had wrongly discarded his documentary evidence. 4. On the other hand it was argued by the learned counsel for the respondent that it was a concurrent finding of fact recorded by the courts below that the appellant was not in possession for 15 or 20 years as allowed by him. He came into possession only in 1370 Fasli and therefore was liable for ejectment. It war argued by the learned counsel for the respondent that this finding of fact cannot be challenged in second appeal. He further argued that the findings arrived at by the trial court as well by the lower appellate court after considering the oral and documentary evidence on record and is quite valid in law. 5. It war argued by the learned counsel for the respondent that this finding of fact cannot be challenged in second appeal. He further argued that the findings arrived at by the trial court as well by the lower appellate court after considering the oral and documentary evidence on record and is quite valid in law. 5. I have given due consideration to the arguments advanced by the learned counsels for the parties and have also carefully gone through the record of the case. Both the courts below have recorded finding that the plaintiffs were Bhumidharas of plot No. 1240 and Sirdars of plot No. 1239 and were entitled to bring the suit. They also recorded a finding of fact that the present appellant was only a trespasser since 1370 Fasli and was liable to be ejected. After appraisal of the evidence on record they also recorded a finding that the documents of possession filed on behalf of the appellant or other evidence led by him was of no value and discarded the same and these findings of facts cannot be agitated in second appeal before the Board. The judgement passed by the trial court as well as of the lower appellate court are exhaustive judgements. The evidence has elaborately been dealt with and after appraisal of the same they came to the above conclusions which cannot be reversed now, by the Board in second appeal. The appellant had filed documents namely Khasra 1366F-1368F and 1369 Fasli and on its basis claimed that he was in possession since before 1361 Fasli. There was an entry in 1369 Fasli that he was in possession since 1361 Fasli and on that basis he claimed his possession though there was no document to show that he was in possession in 1361F, 1362F, 1363F, 1364, and 1365 Fasli. His entry was first time made in 1366 Fasli but the entry was also not in accordance with the procedure laid down in Land Records Manual. Para 60 of the Land Records Manual laid down as to that how the Khasras are prepared. Para 80 and 81 deal with the cases of the possession of a person other than tenure holder is found in possession by the Lekhpal and prescribe the procedure that the Lekhpal has to follow before making an entry of possession. Para 60 of the Land Records Manual laid down as to that how the Khasras are prepared. Para 80 and 81 deal with the cases of the possession of a person other than tenure holder is found in possession by the Lekhpal and prescribe the procedure that the Lekhpal has to follow before making an entry of possession. Para A-102-C is very important in respect thereto, it lays down certain conditions to be followed. For the said entry of possession and it has further been laid down in clause 3 of this section that if no compliance of these provisions is made the entry in remarks column of Khasra will not be deemed to have been made in the dis-charge of the official duty of the Lekhpal. It is thus clear from the provisions of Paras 80, 81, and A-102-C of the Land Records Manual that if the provisions of these said paras are not complied with the entry of a person in the remarks column would be of no value. In the present case the provisions of said paras have not been complied with as it apparent from the Khasra extracts filed by the appellant and in the circumstances the said entries had rightly been discarded by the courts below. The Hon'ble High Court in Pahalwan Singh v. Deputy Director of Consolidation and others Writ Petition No. 42 of 1972. has held the same view that non-compliance of paras A-80 and A-82 of thee Land Records Manual would render the entries of possession in Khasra without any evidentiary value. The trial court therefore had rightly discarded these Khasra entries and attached no value to it. The learned counsel for the appellant argued that at least the statement of Mohammad Sharif dated May 16, 1969 ought to have been believed by the courts below wherein he was stated that the appellant was in adverse possession of the land in dispute since two years before i.e., since 1364 Fasli. This has also rightly been discarded by the court below. This statement was given by Mohammad Sharif after he had executed a sale deed of the land in favour of Chand Mohammad and he had no interest left in it and therefore the said admission was no admission with in the meaning of Section 12 of the Indian Evidence Act as there was no continuity of his interest in it. This statement was given by Mohammad Sharif after he had executed a sale deed of the land in favour of Chand Mohammad and he had no interest left in it and therefore the said admission was no admission with in the meaning of Section 12 of the Indian Evidence Act as there was no continuity of his interest in it. Besides it has also been observed by the lower appellant court that there was animosity between Mohammad Sharif and the mother of the present plaintiffs because of litigation therefore he was motivated to give such a statement against their interest. The courts below have given proper reasons for recording the finding that the appellant could not be the Sirdar of the land in suit either on the basis of adverse possession or on the basis of any sub-lease obtained from Mohammad Sharif as his possession was not proved nor any rent receipt, Patta etc. have been filed by him. It was also contended by learned counsel for appellant that the plaintiffs cannot be treated tenure holders entitled to bring a suit. This has also been adjudged by the courts below and a finding recorded by the courts below in favour of the plaintiffs which cannot be disturbed at the stage of second appeal. 6. On the reasons given above I find no force in the second appeal and it is hereby dismissed with costs.