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1992 DIGILAW 406 (ALL)

Lekh Raj v. Gaon Sabha

1992-03-26

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This appeal has been filed under Section 331(4) of U.P. Act No. 1 of 1951 against the decree and judgment of the Additional Commissioner, Agra Division, Agra dated 25.4.1979. 2. Brief facts of the case are that the appellant filed a suit under Section 229-B of U.P.Act No. 1 of 1951 that he is bhumidhar of the suit plot. His claim is that his possession was from the enforcement of U.P.Act No. 1 of 1951. During the consolidation in the village the land was out of consolidation; since his possession was very old, therefore, he is recorded in class 4 over the disputed plot. The suit was contested by the State Government that the appellant has not acquired any right and title over the disputed plot. The trial court after framing issue dismissed the suit on 23.2.1977 and ordered that plaintiff should be rejected from the suit plot. Appeal was filed against that decree and judgment before the learned Additional Commissioner who has dismissed the appeal, against which this second appeal has been filed. 3. Heard the learned counsel for both the parties. Perused the record. 4. The order of the trial court as well as that of the 1st appellate court is illegal. They cannot order to the ejectment of the plaintiff when there was no suit from the side of the other party, therefore, the decree and judgment is not sustainable. The rial court has also not considered the oral evidence of the parties. He had not tried to go into the root of the case to find out the possession of the appellant where such root exist by way of evidence in the file. It is in the oral evidence that there are trees and there is also a well and pumping set in the disputed plot. In these circumstances both the courts has not cared to determine the point of dispute clearly and specifically, therefore, I allow the appeal and set aside the decree and judgments of both the courts below and remand the case to the trial court to ascertain the period of possession of the appellant on the basis of the age of the tree and any other evidence which may be adduced.