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1988 DIGILAW 856 (ALL)

Brij Jiwan Lal v. Dinesh Dutt

1988-09-15

M.M.GOPAL

body1988
JUDGMENT M. M. Gopal, Member. - This is a second appeal against the judgment dated 6.7.78 of the learned Additional Commissioner by which he allowed the appeal and set aside the order of the trial court dated 20-2-1978. The trial court had dismissed the suit. 2. Heard the learned counsels for the parties and perused the file. 3. The facts of the case are that on 16.10.71 (i.e. 1382F.) Dinesh Dutt filed a suit under Sections 229-B/209 of U.P. Act I of 1951 against Brij Jiwan. It is prayed that he may be declared owner of the land in suit and the name of Brij Jiwan be expunged from the revenue records. On 2.12.74 Brij Jiwan filed written statement denying the right of the plaintiff. It is interalia alleged that by adverse possession he acquired the right and the plaintiff lived in another village and he is not in possession over the land in suit. The trial court dismissed the suit. It hold that the defendant was in possession from 1359F upto 1368F hence he acquired the right and the plaintiff had lost rights, if any. The learned Additional Commissioner allowed the appeal and decreed the suit. He held that the defendant did not acquire any right by adverse possession. The entries were not in accordance with law. Even the oral evidence is of no value to confer any right on defendant by adverse possession. 4. The learned counsel for the appellant has contended that he was recorded in possession in 1359F and later on from 1368F to 1373F etc. Hence he has acquired the right and the appeal has wrongly been allowed by the lower appellate court. 5. The learned counsel for the respondent has contended that there is no continuity of possession, hence by adverse possession the defendant could not acquire right. The plaintiff had filed several documents he is recorded tenant in chief column since 1359F. He paid rent etc. and such a long entry cannot be set aside. There is presumption of correctness of long entries and the defendant failed to show that it was not correctly recorded. 6. In this case the main question is in respect of possession. The word 'possession' is comprehensive. It means the person who has a right to possess or the person who is actually in possession. Ownership includes possession. There is presumption of correctness of long entries and the defendant failed to show that it was not correctly recorded. 6. In this case the main question is in respect of possession. The word 'possession' is comprehensive. It means the person who has a right to possess or the person who is actually in possession. Ownership includes possession. Hence the possession of the owner is over the land in suit unless and until it is shown that other man was actually in possession. In other words, having title he may not have actual possession over the land in suit and the other person by adverse possession can acquire the right over the land insult. That means the owner has not to prove the possession over the land in suit where as the person who is claiming possession against the right of the owner has to show and prove his possession against the interest of the owner over the land in suit. Thus the nature of possession in both the cases differ and the person claiming right on the basis of adverse possession has to show that he actually cultivated the land and continued in adverse possession for such a period that he acquired right over the land in suit. Hence in this case it is to be seen whether the plaintiff can prove his right over the land in suit or not. He is recorded in 1359F in red ink and later on in 1362F and in subsequent years. Thus his name is recorded over the land in suit in chief column. Such a long entry cannot be brushed aside only because it does not appear on what basis the entry in 1359F had been made or there is nothing to substantiate on what basis that entry was made. It is generally not possible for a person to keep such evidence after a lapse of about 35 years. Moreover, the correctness of long standing entries should be presumed (Under Section 44 of the L.R. Act.) and from 1362F the plaintiff is recorded in chief-column. If the sanctity to long standing entry is not given, there will be no purpose to these revenue papers and the entries made therein. Several rent receipts and several documents as mentioned by the learned Additional Commissioner are in favour of the plaintiff. If the sanctity to long standing entry is not given, there will be no purpose to these revenue papers and the entries made therein. Several rent receipts and several documents as mentioned by the learned Additional Commissioner are in favour of the plaintiff. There is his own evidence hence on these grounds the plaintiff is the owner of the land in suit and the suit has been rightly decreed. So far as the question of acquiring right on the basis of adverse possession is concerned, the defendant has failed to prove his possession over the land in suit. Stray entries in remarks column cannot give right to the defendant. His name is not recorded in 1361, 1362, 1364 and 1365 Faslis. It is also mentioned by the court below that the entries were not in accordance with law. The proper procedure had not been followed while making entries in remarks column and there was no service on the tenant in chief as required by law. 7. I, therefore, find no force in the second appeal. The finding given by the lower appellate court is on the basis of the reasons. There is no illegality or mistake apparent on the face of it and the finding of fact does not require any interference by this court. 8. The second appeal is hereby dismissed. 9. Under the circumstances of the case the parties shall bear their own costs.