Shobha Ram v. Gulab Singh — 1985 DIGILAW 1229 (ALL)

JUDGMENT P. Singh, Member - This second appeal has been filed under Section 331 of U.P. Act I of 1951 against the judgment and decree of Shri Rajendra Kumar Garg, Additional Commissioner, Agra Division, Agra dated 30-6-76 in Appeal No. 77 of 1973-74 upholding the judgment and order of Shri N.C. Jain Assistant Collector First Class, Aligarh, dated 21-12-73. 2. Briefly stated, the facts of the case are that Gulab Singh and others filed a suit under Section 209 of U.P. Act I of 1951 alleging that they were co-bhumidhars of plot No. 19, area 0-19-10, that this land was out of consolidations operations, that the land which was under consolidation operations was partitioned, that on account of this an area of 0-4-17 had been recorded in the name of Darabar Singh, an area of 0-4-18 had been recorded in the name of Babulal, Puranmal and Ghureylal and 0-4-18 in the name of plaintiff Gulab Singh, separately, in their khatas, that the new numbers of these are 16-Ka, 16-Kha and 16-Ga, that Bahori was the sirdar of plot No. 16-Kha measuring 6 Biswa, that defendant, Shobha Ram, was the owner of plot No. 17, that plaintiffs were bhumidhars of plot 16/2-Ka, Kha and Ga, and accordingly, the plaintiffs prayed for the ejectment of Shobha Ram and for realisation of damages. Shobha Ram filed a written statement alleging that there was no cause of action for filing the suit, that the plaintiffs had filed three separate suits which were withdrawn, that the cost that was levied in those cases had not been deposited, and that the plaintiffs never cultivated the land lying between the Nala and the plots of defendants. The trial court decreed the suit. An appeal was preferred against that order of the trial court dated 21-12-83. The learned Additional Commissioner dismissed the appeal. 3. I have heard the learned counsels for the parties and perused the record. 4. The trial court decreed the suit. An appeal was preferred against that order of the trial court dated 21-12-83. The learned Additional Commissioner dismissed the appeal. 3. I have heard the learned counsels for the parties and perused the record. 4. The learned counsel for the appellant submits that the lower appellate court had decreed the plaintiffs suit without a finding that the plaintiffs were bhumidhars of 0-19-10 of land out of which the suit had been decreed for 0-18-8, that the commissioner had erred in law in making a sue plan without making measurements from a fixed point, that there is no provision for issuance of a commission, that the proper remedy open to the plaintiffs was to get the land demarcated under Section 4 of the Land Revenue Act, that the appellant had filed an objection against the report of the Commissioner and the said objection had not been decided by the trial court, that the findings of the courts below are perverse, and that the commissioner had not been examined by the court and hence his report should not have been considered at all. Against this, the learned counsel for the respondents submits that both the courts below have evaluated the evidence and recorded a finding of fact that the plaintiffs were bhumidhars of 0-10-8 of land out of the land in suit measuring 0-19-10, that the land was out of consolidation, and that the order of eviction had been passed by both the courts. The learned counsel for the appellant also submits that the suit was barred by provisions of Section 49 of the U.P. Consolidation of Holdings Act. 5. I find that the present suit was filed under Section 209 of U. P. Act I of 1951. A suit under Section 209 is filed for ejectment of the unauthorised occupants from the land of a bhumidhar. In a suit under Section 209 no title is decided but a person holding rights in the land seeks for eviction of an unauthorised occupier from the land. In view of this, the suit under Section 209 was not hit by the provisions of Section 49 C. H. Act, as the cause of action arose after the consolidation operations. In a suit under Section 209 no title is decided but a person holding rights in the land seeks for eviction of an unauthorised occupier from the land. In view of this, the suit under Section 209 was not hit by the provisions of Section 49 C. H. Act, as the cause of action arose after the consolidation operations. On account of this, I am not inclined to accept the contention of the learned counsel for the appellant that the instant suit was barred by Section 49 of the C.H. Act. The learned Additional Commissioner has considered the report of the commissioner and has held that the commissioner had made measurements from two fixed points and had verified his measurements properly. He has held that the Commissioner had measured this plot from a fixed point existing at the west corner of plot No. 58 and he also made measurements from a fixed point existing at the corner of plots Nos. 1 and 2. He has held that the suit had been filed for an area of 0-19-10 but the commissioner found that the unauthorised occupation was only over an area of 0-10-8. The learned Additional Commissioner has compared the report of the commissioner from the old map out of which the chaks were carved out in the consolidation proceeding. On account of this, he has found that the plaintiffs had a title over the land from which they had sought for the ejectment-of the respondents. The learned Additional Commissioner has also evaluated the oral evidence and found that the possession and title of the plaintiffs was proved from the papers prepared during the consolidation operations. 6. The learned counsel for the appellant has submitted in ground No. 6 of the memo of appeal that the appellant had filed an objection against the report of the commissioner and the said objection having not been decided by the trial court, the report of the commissioner could not be relied upon against the plaintiffs. I find from the file of the trial court that the trial court had considered the objection filed by the appellant and rejected the objection vide his order dated 14-12-73. The trial court says in its order. " vr% eki dks lgh eku dj fjiksVZ deh'ku Lohdkj dh tkrh gS vkSj ,rjkt [kkftj fd;k tkrk gS]". I find from the file of the trial court that the trial court had considered the objection filed by the appellant and rejected the objection vide his order dated 14-12-73. The trial court says in its order. " vr% eki dks lgh eku dj fjiksVZ deh'ku Lohdkj dh tkrh gS vkSj ,rjkt [kkftj fd;k tkrk gS]". In view of this, the contention of the learned counsel for the appellant is not tenable under the law. 7. The learned counsel for the appellant also submits that there is no provision in the U.P.Z.A. & L.R. Act for issuance of a commission. I find that a commission was issued by the trial court for the purpose of identification of the land in suit and the area under unauthorised occupation. A commission is issued for determination of certain facts which could not be done on the basis of oral and documentary evidence but only on verification of facts on the spot, and by issuing a commission the trial court has committed no error or law at all. 8. The learned counsel for the appellant has not been able to show that any illegality has been committed in the appraisal of evidence in the case by the courts below. Both the courts have given a finding of fact that the defendants were in an unauthorised occupation of an area of 0-10-8 of land, I am, therefore, not inclined to interfere with the concurrent finding of the courts below at the stage of second appeal. Consequently, this appeal fails and is hereby dismissed. Costs easy.