JUDGMENT Nathoo Lal, Member - This revision No. 103 (z) of 85-86 has been filed by Bhagwan Singh and his three brothers impleading Gaon Sabha and others as the opposite-parties challenging the order passed by the Additional Commissioner, Agra Division, Agra on 31-12-1985 in Appeal No. 93 of 84-85 arising out of the judgment and decree passed by the S.D.O. Sikandra Rao district Aligarh on 5-1-1985 in suit no. 38 of 1984 between the parties. 2. The facts of the case in brief are that a suit under section 229-B of the UP ZA and LR Act was brought before the S.D.O. Sikandra Rao Aligarh by opposite party Smt. Kapoori Devi wife of Ladheti Prasad resident of village Khitauli, pargana and Tehsil Sikandra Rao district Aligarh impleading Chandan Singh and several others as defendants and the suit was registered as suit no. 38 of 1984 wherein the plaintiff-opposite-party claimed joint tenancy rights along with the revisionists to the extent of share in the land in suit consisting of plot no. 54 containing an area of 2 bighas 10 biswas of village Khitauli, pargana and Tehsil Sikandra Ran district Aligarh. This suit was decreed by the trial court ex parte against the revisionists under the judgment and decree dated 23-7-1984 and the restoration application filed by the revisionists was also rejected by the trial court under his order dated 5-1-1985. The revisionists-defendants went in appeal before the Commissioner and the Additional Commissioner too dismissed the appeal under the impugned order giving rise to the present revision before this court. 3. I have heard the learned counsels for the parties and have perused the record. 4. The learned counsel for the revisionists, during the course of his arguments, revealed that the restoration application filed by the revisionists before the trial court was not much belated because the delay, if any, to be considered at all, was only of 5 days and the learned Courts below taking a arbitrary and prejudiced view under the undue influence of the so called merits of the plaintiff's case have not been justified on any grounds in not taking a judicial view of the matter and in not accepting the explanation of the revisionists for filing the restoration application a bit late. The learned counsel has further argued that the service of summons on the revisionists/defendants was shown by refusal and it was all the conspiracy ploted against the defendants by the plaintiff and her family members in collusion with the process server of the tehsil, because as a matter of fact, the revisionists-defendants did not have knowledge about the suit pending against them nor about the order passed within the stipulated period nor the process server actually went to them bringing the summons or notices for service and reported dishonestly in collusion with the plaintiff regarding refusal. The contentions of the learned counsel for the revisionists are that the stipulated time required for moving restoration application is to be calculated and counted from the date of knowledge instead of any other date on the basis of fictitious service of summons. Referring to 1980 R.D. page 180, the learned counsel has further argued that it was obligatory on the part of the trial court and on the part of the first appellate court as well to have taken some positive evidence including the recording of the statements of the process server concerned and the witnesses shown on the summons before whom the refusal was alleged, before arriving at any conclusion and forming the view in favour of refusal of summons by the revisionists. The learned counsel has also made contentions referring to 1987 R.D. page 416 (Supreme Court) that it is a settled view of the highest judicial authority of the country that matters affecting the rights and title of the parties should be decided as far as possible on merits and the courts should avoid to go into mere technicalities of legal defects in deciding the matters for and against the parties to the contest with a view to do substantial justice in the case. 5. 5. The learned counsel for the opposite-party on the other hand during the course of his arguments has concentrated to press the merits and demerits of the dispute itself with regard to the rights and title of the parties and has contended that the revisionists and the opposite-parties were recorded co-tenants previously but without any order of the competent authority or court the name of the plaintiff along with other co-tenants were expunged from the village records and in that view of the matter both the learned courts below have been totally justified in dismissing the restoration application. The learned counsel has gone to argue further that since the restoration application was belated and since no application for condonation of delay under section 5 of the Indian Limitation Act was moved, the learned courts below have rightly dismissed the request for restoration holding the service of summons to be sufficient. The learned counsel has also argued that findings of facts cannot be looked into in the present revision while the learned courts below have also kept in view the intention of the revisionists expressed in the form of refusal of summons. 6. Having given a thoughtful consideration to the arguments advanced by the learned counsels for the parties I am of the opinion that the arguments advanced by the learned counsel for the opposite-party cannot be accepted in the facts and circumstances of the case because for proving the service of summons or notices within the relevant legal provisions, it is obligatory and rather bounden duty of the court trying the suit to take positive evidence in support of the mode of service adopted by the process server before arriving at a definite conclusion to form a definite view affecting the findings on that -matter and in such cases the best evidence is to record the statements of the process server and the witnesses in whose presence the summons were allegedly served on the parties concerned. The law provides that independent witnesses are to be taken on the spot before whom the service is to be affected particularly in cases of refusal. This is the minimum requirement for the court to believe that the parties concerned have actually refused to take summon or receive the summon but refused to sign in token of it. The law provides that independent witnesses are to be taken on the spot before whom the service is to be affected particularly in cases of refusal. This is the minimum requirement for the court to believe that the parties concerned have actually refused to take summon or receive the summon but refused to sign in token of it. In the present case the revisionists moved the restoration application disclosing therein that they did not have any knowledge about the process server going to their village to make service of summons in the present case and it was all a manufactured story because the witnesses taken are the plaintiff herself, the real brother of her husband Sri Niwas and one of the defendants Chandan Singh who was in collusion with the plaintiff and the report was prepared at the house of the plaintiff herself, It was also disclosed that the revisionists could have knowledge of the suit pending against them on 27-8-1984 only after the order was passed and the restoration application was moved on 28-8-1984 immediately. In view of the fact that the restoration application was belated only by 5 days, it was a strong ground for the presumption in favour of the revisionists and their versions should have been believed that they could not have knowledge of the proceedings or the trial of the suit pending against them because their intention does not appear to have been to prolong the litigation otherwise the restoration application could not have been moved with such a short delay. Moreover, if the service by refusal has not been proved with convincing evidence on record the limitation for filing the restoration shall run from the date of knowledge and not from the date of order. Moreover, if the service by refusal has not been proved with convincing evidence on record the limitation for filing the restoration shall run from the date of knowledge and not from the date of order. The contention of the learned counsel for the opposite-party as also the observations made by both the learned courts below on the merits and demerits relating to the rights and title of the parties and the happenings which occurred with regard to the village records and the entries therein, cannot be considered to be the grounds for rejecting the restoration application because unless the revisionists have also been allowed to put their case before the court and to contradict the pleadings of the plaintiff with convincing evidence, no conclusions can be drawn on the basis of surmises and conjectures particularly on the basis of presumptions raised with regard to the entries in village record. I am therefore of the opinion that whatsoever, good merits of the case of plaintiff might have been they cannot be considered to be sufficient for rejecting the restoration application simply because such merits are only ex parte. 7. In view of the observations made above, it is held that the learned trial court as well as the learned first appellate court have acted in exercise of wrong jurisdiction in rejecting the restoration application without sufficient grounds and against the norms of natural justice. The revision is therefore allowed, the orders of both the courts below dated 5-1-1985 and 31-12-1985 are set aside and the restoration application is also allowed setting aside the judgment and decree passed by the trial court in the suit under consideration dated 23-7-1984 with the directions that the trial court shall proceed with trial of the case further for its disposal in the light of the observations made above and in accordance with law and rules.