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1992 DIGILAW 1324 (ALL)

Satya Dhari Rai v. Shambhu

1992-09-28

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, M. - This second appeal has been filed under Section 331 (4) of U.P. Act No. 1 of 1951 against the decrees and judgment dated 1.1.1987 passed by Addl. Commissioner, Gorakhpur Division, Gorakhpur in appeal No. 125/1085/522A-77 against the decree and judgment passed by Sub-Divisional Officer, Azamgarh dated 15.11.1977 in a suit No. 161 under Section 229-B of U.P. Act No. 1 of 1951. 2. In brief the facts of this case are that Shambhu Prasad and others filed the above suit in the Court of Sub-Divisional Officer, Ghosi, District Azamgarh that they have obtained the plots from the landlord Satya Dhari and Ram Mohan and have planted trees with the written permission of the defendants who were sir-holder of the suit plot No. 56 area 522 Kari of village Sarai Lakhanasi, Kasba Maunath Bhanjan, Tahsil Mohamrnadabad, District Azamgarh. They are grove holders of the suit plots in possession. But the name of the defendants is wrongly recorded as a bhumidhar of the suit plots, hence they prayed for declaration that they are grove-holders bhumidhars of the suit plots. The appellants Satyadhari and Ram Mohan contested the suit on the ground that they have never settled the suit plots with the plaintiffs-respondents. It is their grove land and they are in possession. The disputed plot is in urban area, and after the enforcement of the U.P. Z.A. and L.R. Act in 1956 the records were prepared and they were recorded as bhumidhars of the suit plot grove-holders. The trial court after framing the issues and taking the evidence dismissed the suit of the plaintiff on 15.11.1977. Then the plaintiffs filed first appeal in the court of Addl. Commissioner and the first appeal was allowed and the suit was decreed and they were declared of sirdhars of the suit plot. Against which decree and judgment this second appeal has been filed by the defendants-appellants. 3. I have heard the learned counsel for both the parties. Perused the record. 4. The trial court has recorded the finding that the plaintiffs-respondents have failed to prove that they were accorded any permission to plant the trees. They have also failed to prove that the trees were planted by them. The trial court also find that during the enforcement of Uttar Pradesh Urban Area Z.A. and L.R. Act the plot has been recorded in the names of the appellants-defendants. They have also failed to prove that the trees were planted by them. The trial court also find that during the enforcement of Uttar Pradesh Urban Area Z.A. and L.R. Act the plot has been recorded in the names of the appellants-defendants. Therefore, against these finding of the trial court the appellants court has recorded that the plaintiffs-respondents' ancestor were recorded in Khatauni 1356 fasli as a Shikmi of the suit plots. Therefore, their possession is proved, hence they have acquired the bhumidhari rights over the disputed plots. 5. It is admitted case of the parties that the disputed land is grove on the spot. It is also proved and finding recorded by both the courts that there has been no written permission or even the settlement of the disputed plots with the plaintiffs respondents. The appellants were recorded in settlement Khatauni of 1309 fasli and Khasra 1333 to 1334 fasli as a sir-holder of the suit plots. The name of the ancestor of the plaintiffs-respondents was recorded in 1356 fasli part II Khatauni but the nature of the tenancy or sub-tenancy has not been indicated. The period of cultivation is shown 17 years. It is also not indicated that the disputed plot is grove. How this entry came in 1356 Fasli Khatauni and after that it was discontinued in Khatauni subsequently has not been explained. In this way this is a stray entry in a particular year. Khasra extract 1333 and 1334 fasli there is no entry of any one recorded as a tenant of the suit plots against the entry recorded in the names of the defendants-appellants. There is also no remarks column entry to indicate that there are any tree at that time in the disputed plots. In these circumstances of the fact the entry of 1356 fasli which is not in accordance with Land Records Manual and it does not disclose the nature of the entry. In Part II Khatauni whether it was cultivated land or a grove land. In 12 years Khasra extract the disputed plot is recorded from 1371 fasli to 1377 fasli in the name of defendant-appellant. They are recorded in main column of the Khasra. In Part II Khatauni whether it was cultivated land or a grove land. In 12 years Khasra extract the disputed plot is recorded from 1371 fasli to 1377 fasli in the name of defendant-appellant. They are recorded in main column of the Khasra. The name of plaintiffs ancestor was first recorded in 1378 Fasli in the main column, therefore, this entry becomes totally illegal that if any person was admitted over the disputed plot or occupied it the name of that person cannot be recorded in main column of the Khasra. If the plaintiffs ancestors were sub-tenants or Shikmi tenants then they should have been recorded in the Shikmi column of the Khasra, therefore, the entry becomes totally illegal and against the provisions of the Land Records Manual. There is another 12 years Khasra extract in which in 1359 Fasli over the disputed plot, in the main column only there is entry of Sir-marlkan in main column and in Shikmi column name of ancestor of the plaintiff has been shown. This entry is also doubtful that there is no name of any one in the main column of Khasra, then only the names of the plaintiffs-respondents given in the remarks Shikmi column. 6. In these circumstances of the case the finding recorded by the trial court that the entry of the Khatauni as well as Khasra is in accordance with the rules and they are forged entries appears to be true. The plaintiffs has failed to prove on what terms and condition the land was set up with them. They have also failed to prove that they were permitted to plant the tree by the landlord. No such entry has been ever recorded in the revenue records. In these circumstances of the fact, I am of the opinion that the entry which has been recorded during the process of the finalisation of record after the enforcement of Urban Area Z.A. and L.R. Act in the village is perfectly correct, the plaintiffs-respondents have failed to rebut those entries which has been prepared after the enforcement of Urban Area Z.A. and L.R. Act. In these circumstances of the case no weight can be given to be the entry which find place in some year and is totally absent in other years. In these circumstances of the case no weight can be given to be the entry which find place in some year and is totally absent in other years. Therefore, the learned first appellate court have committed illegality in giving much weight to those entries which are not in accordance with the provisions of the Land Records Manual and which are highly suspicious entries. There are other entries also regarding other plots. These entries were continuous and they were recorded before the enforcement of the Urban Area Z.A. and L.R. Act and after that, therefore, it cannot be said that the appellants-defendants had undue influence over the revenue authorities to change and got the entry in their favour. If they could have been able to arrange those entries they could have been able to arrange the other entries too but there is not the case. There are many plots of the defendants-appellants over which the tenants were recorded before the enforcement of Urban Area Z.A. and L.R. Act and have also been recorded afterwards. This entry makes the first appellate court's observation and finding that the appellants-defendants were educated and were able to manipulate the entries in their favour. I do not believe. 7. In these circumstances of the case this second appeal is allowed and the order of the first appellate court is set aside and that of the trial court is restored.