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1992 DIGILAW 222 (ALL)

State v. Raghunath Singh

1992-02-17

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This revision has been filed under Section 333 of U.P. Act No. 1 of 1951 against the judgment dated 4.8.1986 passed by Commissioner, Moradabad Division, Moradabad in revision No. 6 of 1985 before him confirming the order dated 27.7.1984 passed by Sri Satyavir Singh, Sub-Division Officer, Bijnor in suit No. 20/84 under Section 229-B of U.P. Act No. 1 of 1951. 2. Before the Trial Court Raghunath Sigh respondent filed suit under Section 229-B of U.P. Act, No. 1 of 1951 for the declaration of bhumidhar right, on the basis of adverse possession, regarding plot No. 2171 area 4 biswa, 2173 area 0-6-0, 2174 area 0-11-0, 2175 area 0-19-0, 2176 area 0-9-0, 2330 area 0-6-0 and 2329 area 0-7-0 of village Nekophal alias Bilai, Pergana Daranager, district Bijnor. The suit was dismissed in default on 23.5.1985. Raghunath filed restoration application on 28.5.1984. The ex-parte order was set aside on 1.6.1984. In the same order the lower court passed order to issue notice for the defendant for 17.6.1984. There is no summon on the record to show whether a summon was issued or not in compliance of that order. Two witnesses Ranvir Singh son of Raghunath Singh and Chiranji Singh son of Ater Singh were examined and the suit was decided on 27.7.1984. The decree was prepared on the same day. Pargana Amaldaramed was issued on 28.884. In this Parvana Amaldaramad plot No. 1932 area 0-4-0 Plot No. 1933 area 0-19-0, plot No. 1934 area 0-6-0, plot No. 1935 area 0-11-0, plot No. 1936 area 0-9-0, plot No. 2046 area 0-6-0, plot No. 2032 area 0-0-6 and 2049 area 0-7-0. After it the Gaon Sabha filed restoration application on 10.10.1984 alleging that no summon and notice either before the restoration of the suit or after it were issued, a different plot has been given in the ammaldaramad. All the proceeding has been done in collusive and fraudulent manner. This restoration application was opposed by Laxman Sigh through his counsel. During the restoration application copy of C.H. form 41 was also filed on 13.2.1985. 3. The learned trial court on 9.7.1985 dismissed the restoration application on the ground that the Gaon Sabha has filed to prove its claim over the disputed land. This restoration application was opposed by Laxman Sigh through his counsel. During the restoration application copy of C.H. form 41 was also filed on 13.2.1985. 3. The learned trial court on 9.7.1985 dismissed the restoration application on the ground that the Gaon Sabha has filed to prove its claim over the disputed land. A revision was filed by the Gaon Sabha and State Government against that order before the Commissioner who dismissed the revision on 4.8.1986 against which this revision was filed by the Gaon Sabha and State Government. 4. Heard the learne counsel for both the parties. Perused the record. 5. Learned D.G.C. argued that Amaldaramad was only possible for the suit plot for which judgment and decree was passed by the trial court. The trial court could not have done the amaldaramad for different plots. I fully agree with the contention of the learned D.G.C.(R) on this point. Before issue of amaldaramad even an application was not moved to change the plot number. Neither copy of C.H. form 41 was given there when the amaldaramad was issued. There is no indication how the different plots were incorporated in the Parvana Amaldaramad. The copy of C.H. Form 41 was filed when there was a contest regarding the restoration application. The contention of the learned counsel that the State and Gaon Sabha is not a party, the suit plot was recorded in the name of Smt. Ahmadi Begum widow of Bachcha. There was an agreement to sell. After the expire of date of the agreement no sale deed was executed the respondent was in continuous possessing, hence he acquired the right on the basis of adverse possession. The copy of Khatauni 1389 to 1394 Fasli shows that Smt. Ahmadi widow of Baccha Ali was recorded that the suit plot her period of cultivation is shown since before 1360 fasli. This Khatauni was issued on 10.3.1984. It means upto that period there was no consolidation in the village. The consolidation started after wards. The copy of C.H. Form was obtained on 23.1.1985. It means that the consolidation took place in between that period i.e. 10.3.1984 to 23.1.1985. The suit was ex-parte decreed on 27.7.1984 and Amaldaramad was ordered on 28.8.1984. If there was a consolidation operation when the suit was decided then the trial court has no jurisdiction at all to try the suit. It means that the consolidation took place in between that period i.e. 10.3.1984 to 23.1.1985. The suit was ex-parte decreed on 27.7.1984 and Amaldaramad was ordered on 28.8.1984. If there was a consolidation operation when the suit was decided then the trial court has no jurisdiction at all to try the suit. If there was no consolidation operation at that time then the Amaldaramad could not have been done by new plots. If the consolidation operation was over then the suit was defective no suit has been filed from the old plot. In any case the trial court could not have issued Amaldaramad from a different plot than the plots for which decree was prepared. In these circumstances the order of the trial court and that of the re-visional court was exercised illegally and without material irregularity. 6. I, therefore, allow this revision and set aside orders of both the courts below. I also set aside the judgment and decree dated 27.7.1984 and direct the trial court to afford opportunity to the State and Gaon Sabha to contest the suit on merit.