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1992 DIGILAW 1611 (ALL)

Ved Prakash v. Ram Niwas

1992-12-04

J.N.DWIVEDI, V.S.PANDEY

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JUDGMENT V.S. Pandey and J.N. Dwivedi, Members. - This review petition has been filed against the order dated 20-7-89 passed by Sri S.K. Lakhtakia, the then Member, Second Appeal No. 145 of 1974-75, by which the second appeal was dismissed. 2. We have heard the learned counsel for the paries, and gone through the records. 3. It was pointed out by the learned counsel for the applicants that the suit filed by Ram Niwas and others was highly time barred. It was clearly stated by the defendants that their possession over the disputed portion was very old, but no decision was given by he courts on the question of limitation. Another point taken was that it has been consistently held by this Court that in cases where demarcation is necessary, some revenue staff should be sent for demarcation, instead of sending a vakil commissioner. 4. A. Perusal of the trial court file shows that Ram Niwas and others filed a suit against Ved Parkash and others for ejectment from a portion of plot No. 105. This suit was contested, and in para 13 of the written statement it was clearly stated that their possession had continued for the last 25 years, and it is so existed even on the date of vesting. However, the trial court simply decreed the suit on the basis of the report of the vakil commissioner that the defendants had encroached upon the land of the plaintiffs. No finding was given on the question of limitation, and the first appellate court as well as the learned single Member also overlooked this point. Hence, there is patent error in the judgment of Sri S.K. Lakhtakia, Member, and his order should be set aside. In our opinion, the case should be sent back to the trial court for decision afresh after framing an issue regarding limitation. It will also be proper that the trial court should direct some revenue staff well-versed with the demarcation work, and the should determine the question of encroachment. 5. We, accordingly, allow this review petition, and set aside the order of Sri S.K. Lakhtakia, Member, and allow the second appeal, and set aside the orders of the courts below, and remand the case to the trial court for fresh decision, as directed above.