Research › Browse › Judgment

Allahabad High Court · body

1992 DIGILAW 609 (ALL)

Adit Singh v. Mukhdeo

1992-04-23

R.K.DHUSIYA

body1992
JUDGMENT R.K. Dhusiya, Member - This second appeal has been filed against the judgment and decree dated 24.6.1983 passed by the learned Addl. Commissioner, Varanasi Division, Varanasi by which he has allowed the appeal and dismissed the suit of the plaintiff and set aside the order dated 21.3.1980 passed by the trial court. The trial court had decreed the suit. 2. Briefly stated the facts of the case are that the plaintiffs, Adit and others, filed a suit under Section 229-B Z.A. and L.R. Act before the trial court in respect of plot Nos. 126/266 area 0-5-13, 172/2 area 0-4-10, 172-G area 0-4-10, 177 area 0-5-0 and 178/269 area 0-4-10 total 1-3-14 against State of U.P. and others on the ground that the plaintiffs are bhumidhar in possession over the land in suit; that the disputed land comes under the chak of the plaintiffs; that the land in suit has been allotted to the respondents assuming it as Banjar land. Hence, it is prayed that the names of respondents No. to 7 may be impugned from the land in suit and the names of plaintiffs be entered as bhumidhar over the land in suit. The defendants No. 3 to 7 filed objection alleging therein that they have got the land in suit on the basis of patta and they are in possession over the same; that the plaintiffs were never in possession over the land in suit as such, they prayed that the suit of the plaintiffs may be dismissed. The trial court after hearing the parties and after going through the evidence on file decreed the suit of the plaintiffs on 21.3.1980. Aggrieved by that order of the trial court an appeal was preferred before the learned Addl. Commissioner who by his order dated 24.6.1983 allowed the appeal and dismissed the suit of the plaintiffs. Aggrieved by the order dated 24.6.1983 the plaintiffs filed the instant second appeal before this court. Hence, the second appeal has come up before me. 3. I have heard the learned counsel for the parties and have also seen the relevant papers on the file. 4. Aggrieved by the order dated 24.6.1983 the plaintiffs filed the instant second appeal before this court. Hence, the second appeal has come up before me. 3. I have heard the learned counsel for the parties and have also seen the relevant papers on the file. 4. The learned counsel for the appellant has argued that the land in suit was the ancestral property and it was wrongly recorded in the name of Gaon Sacha in the consolidation operation; that the trial court decreed the suit of the plaintiffs holding that the land in suit is of the plaintiff; that the Opp. Party, Mukhdeo, is the allottee of the land in suit and since the land in suit is not of the Gaon Sabha as such it cannot allot the same. Further it has been argued that the learned Addl. Commissioner wrongly perused the C.H. Form 23 and acted illegally in holding that the area are different. It has also been argued that the patta was cancelled by the Collector as such, the Opp. Party has no locus standi to contest the case; that the learned Addl. Commissioner did not consider the Form 41 and wrongly based his finding on the area of the plot in suit. In reply it has been argued that the land in suit was allotted by the Gaon Sabha as such, the lease holder has locus standie to contest the case and the Gaon Sabha has no concerned with it; that the appellants failed to prove that the land in suit belongs to him; that the area is seen as such, the learned Addl. Commissioner has rightly allowed the appeal and he prayed that the appeal should be dismissed. 5. From the perusal of file and after hearing to the parties I find that the argument put forth by the learned counsel for the Opp. parties has got no substance because the trial court recorded specific finding that the Opp. party has failed to show that by which order the plots in suit has been recorded in the name of the Gaon Sabha. As such, the trial court has rightly held that the land in suit does not belong to Gaon Sabha. Whereas the locus standie of the Opp. Party is concerned, it is evident that the allotment made in his favour has been cancelled by the competent court on 15.10.1979. As such, the trial court has rightly held that the land in suit does not belong to Gaon Sabha. Whereas the locus standie of the Opp. Party is concerned, it is evident that the allotment made in his favour has been cancelled by the competent court on 15.10.1979. As such, after cancellation of the allotment the Opp. Party has got no right to proceed with the case. The Khatuani of 1366 F. is on file which shows that the old plot Nos. 92, 93 and 330 are recorded in the khata No. 14 of the plaintiff as sirdar. Thus, it is apparent that the plaintiff has proved that the disputed land belongs to him. The learned Addl. Commissioner has held that the areas are different of the new plot No. 126 as such, the plaintiff's suit cannot be decreed. I do not agree with this view because it is settled law that in the carvation of chak valuation should be seen, but not the area; as the area can be more or less. 6. In view of the above, it is apparent that the learned Addl. Commissioner has wrongly observed that the areas are different as such, the plaintiff's suit cannot be decreed. I, therefore, allow the second appeal, set aside the judgment dated 24.6.1983 of the learned Addl. Commissioner and upheld the judgment dated 21.3.1980 passed by the trial court.