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1991 DIGILAW 1383 (ALL)

Hazapi v. Mathura

1991-11-13

BRIJESH KUMAR

body1991
JUDGMENT Brijesh Kumar, Member - This second appeal is directed against the judgment and decree dated 11.1.85 passed by the Additional Commissioner, Jhansi Division, Jhansi, reversing the judgment and decree dated 4.1.84/7.1.84 passed by the Assistant Collector 1st Class, Lalitpur, in a case u/s 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Hazari (the appellant in this second appeal) filed a suit against Mathura and others u/s 229-B/209 of the Act on 18.6.80 in respect of plot No. 178M/2.19 situate in village Sagauriya. His case is that he is the asami in possession of the land in dispute and that the defendant Mathura Sirona, Hari and Kripal had no concern with it. The entry in their name in class 9 is fictitious about which he came to know for the first time when he received the copies of the revenue records. The defendant Mathura and Sirona filed written statement jointly denying the allegations made by the plaintiff. Their case is that they came in cultivatory possession of the land in dispute after the death of their father. Originally Dhira son of Paltu was in possession of the land in dispute. The father of the defendant came in possession of the land in the life time of Dhiru. 3. On the pleadings of the parties, the learned trial court framed 7 issues and decreed the suit on 14.1.84 on the grounds that the entry in class 9 was not made under the orders of the competent authority; that there is no proof of the issuance of PA-10 or PA-24 to the recorded tenant; that the defendants have failed to prove their continuous cultivatory possession and that no right or title could accrue to the defendant merely by virtue of a notice by the Soil Conservation Department for the construction of Bandhi. Aggrieved by this order, the defendants preferred an appeal before the Divisional Commissioner. The learned Additional Commissioner did not agree with the findings of the learned trial court and allowed the appeal on 11.1.85. This second appeal has been filed by the plaintiff against this very order. 4. I have heard the learned counsel for the parties. Sri N.K. Saxena, learned counsel for the appellant has contended that the entry made in class 9 is not in accordance with law and para A-80 and A-81 of the Land Records Manual. This second appeal has been filed by the plaintiff against this very order. 4. I have heard the learned counsel for the parties. Sri N.K. Saxena, learned counsel for the appellant has contended that the entry made in class 9 is not in accordance with law and para A-80 and A-81 of the Land Records Manual. His second submission is that the court below has not considered the oral evidence and this failure on the part of the court below is sufficient enough to set aside its order. Sri R.K. Yadav, learned counsel for the respondent has submitted that there was no provision for the issuance of PA-10 from 1958 to 1965 and that the respondent was in continuance possession from 1369 to 1381-F. The appellant had full knowledge of the respondent's possession over the land in dispute and that Shiv Prasad son of the appellant used to issue receipts to the respondents in token of receiving the rent and so the plaintiff's right of asami, if any, has been extinguished. 5. I have carefully considered the arguments advanced before me and have also perused the record. The learned Additional Commissioner has allowed the appeal on the ground that the possession of the respondent is proved from the fact that he got constructed a bandhi on the land in dispute and that the respondent used to pay rent regularly. He did not appear to have had attached any importance to the issuance of PA-10 on the ground that the plaintiff had knowledge about the possession of the respondent and the entry made in class 9 was fictitious. In the Khatauni 1366-68F, the appellant Hazari is recorded as asami in class 3 and the respondent Gopal in class 9. In the Khasra 1369-80F, Gopal is recorded in class 9 against the plot in dispute. Similar entry has been made in khasra 1381-88F. However, there is no reference of issuance of PA-10 or PA-24. Shiv Prasad, son of the appellant Hazari issued rent receipts to the respondent on 3.7.69, 3.3.75, 28.9.70 and 28.12.77 in token of having received the rent. These documents are sufficient to prove that the respondent was in possession of the plot in dispute. The rent receipt dated 17.9.68, 3.3.69, 18.5.75, 26.8.67, 18.1.71 and 3.9.75 and 13.12.78 go to show that he used to pay rent to the Government. These documents are sufficient to prove that the respondent was in possession of the plot in dispute. The rent receipt dated 17.9.68, 3.3.69, 18.5.75, 26.8.67, 18.1.71 and 3.9.75 and 13.12.78 go to show that he used to pay rent to the Government. The respondent has also filed form 17 issued by the Department of Soil Conservation. In this form, the respondent Gopal is shown as beneficiary of the Bandhi to be constructed on plot No. 178, 185 and 249/7. Krishna Kumar Purohit, Accountant of the Soil Conservation Department appeared in the witness box and deposed that the bandhi was constructed by the department on plot No.178, 185 and 249/7. He further deposed that the amount incurred in the construction was also got deposited from Gopal. The appellant has also filed form 12 issued by the Soil Conservation Department. This is a notice issued to the plaintiff Hazari for the construction of bandhi over so many plots including plot No. 178. It is apparent from this document that the actual beneficiary of the bandhi was the respondent who paid the costs of construction. These documents strengthened the case of the respondent that he was in actual possession and that he was not a rank trespasser. 6. The crucial question to be decided in this case is whether the absence of the issuance of PA-10 is fatal to the case of the respondent. Where a person being not a rank trespasser is in continuous possession to the full knowledge of the recorded tenant, issuance of PA-10 is not necessary. This view has also been taken in Sarju Prasad v. Lal Mohammad, 1976 RD Vol. II 183. The learned trial court has, therefore, committed manifest error in law in decreeing the suit and the decree passed by it deserves to be quashed. 7. In the result, this appeal fails and is consequently dismissed.