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1992 DIGILAW 495 (ALL)

State v. Devendra Singh

1992-04-09

BHAIRO PRASAD

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JUDGMENT Bhairg Prasad, Member - This second appeal was decided by the learned Member Board of Revenue Sri Nathoo Lal on 28.6.90. In para 3 of the judgment he has observed that he has heard the learned counsel for the, parties but in the body the name of respondent's counsel is not mentioned. Restoration application was filed by Sri Girja Shanker, Shashkiya Advivakta Mukhyalaya, Allahabad. The learned Government counsel Sri Devendra Nath Advocate was ill during the period when the appeal was decided. It appears that it was the duty of Sri Girja Shanker Tripathi to pairvi the cases but he could not do it, therefore, he filed the restoration application on 13.9.90. The learned D.G.C. (R) Sri Devendra Nath, Advocate appeared and pleaded that the argument was heard on 16.5.90. Judgment was reserved and it was delivered 'on 28.6.90. The State Government counsel was not heard. 2. The learned counsel for the opposite party argued that the argument of the parties was heard, hence it is not ex-party order, hence restoration application should not be allowed. 3. After considering the case and circumstances of the fact I requested the learned D.G.C. (R) and the learned counsel for the appellant to throw light on the merit of the case in order to prove what injury has been caused to the State, because the learned Member has considered all aspects of the case then he has decided the appeal. The appeal was decided on merit and not dismissed in default or ex-parte. 4. This suit and appeal relates to the plot No. 72 of village Noorpur, Tahsil Bajpur, District Nainital. The i enforcement of the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act was enforced after 1960. The disputed property was recorded in the name of Bharat Bhushan and Sayendas sons of Mela Ram. The suit of the plaintiff-appellant was on the basis of possession and after the enforcement of U.P. Z.A. & L.R. Act they were found to be recorded as Adhivasi. The original tenure-holder had not contested the suit neither the Gaon Sabha nor the original tenure-holder contested the suit. The State Government contested the suit only on the plea that the suit is collusive and the entries are not in accordance with the rules. All the evidence has been lead by the plaintiff-appellant in the suit. No evidence has been filed on behalf of the State Government. The State Government contested the suit only on the plea that the suit is collusive and the entries are not in accordance with the rules. All the evidence has been lead by the plaintiff-appellant in the suit. No evidence has been filed on behalf of the State Government. Three witnesses were examined by the plaintiff appellant. Babu Ram examined as D.W. 1 by the State Government. He is lekhpal of the village. He stated that the plot No. 72 area 77-17-0 is recorded under Class 8 in the name of Totaram in the khatauni of 1386 to 1391 Fasli. After the death of Totaram his son has been recorded. In this way the entry has been also proved by the lekhpal who is witness of the State Government. The learned D.G.C. (R) could not explain as to who is in possession if the plaintiffs-appellants are not in possession, therefore, the suit cannot be said to be a collusive suit. The learned D.G.C. (R) argued that paras A-80 and A-81 are mandatory. In person whose claims is based on the entries it should be proved that the entry is made in accordance with law. Paras A-80 and A-81 is a procedure of recording the entry of possession in Khasra, when the entry has been come down in the khatauni the presumption will be that the entry of the khatauni is correct unless it is proved otherwise. The entry of the khatauni has been also endorsed in the statement of the Lekhpal. He has not stated that it is a forged entry. There is no evidence to prove that the entries are forged, the dispute is between the parties. There is no dispute between the plaintiff-appellant and the State Government. If the entries are forged or fraudulent the inquiry should have been independently and it should have been proved even in this case. Mere argument of the learned counsel for the State cannot rebute the oral evidence and the documentary evidence of the appellant when his witness himself has corroborated the fact of possession and entry in favour of the appellant. In these circumstances of the case I am of the view that there is no case of the State Government except that the State Government is entitled to realise the land revenue which can be calculated on the basis of the order passed by this court. In these circumstances of the case I am of the view that there is no case of the State Government except that the State Government is entitled to realise the land revenue which can be calculated on the basis of the order passed by this court. I, therefore, do not consider it necessary to set aside the order passed by learned member on 28.6.90 only on this ground that the learned counsel for the State has appeared and the order passed by the learned member should be set aside. He has discussed all the points in detail and I cannot draw a different conclusion after perusing and hearing both the parties in this case. Therefore, this restoration application is dismissed.