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1992 DIGILAW 683 (ALL)

Prasanna Kaur v. Firaya Lal

1992-05-04

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This second appeal has been filed under section 331(4) of U.P. Act No. 1 of 1951 against the decree and judgment of Sri A.K. Das, Commissioner, Kummaun Division, Nainital dated 13.12.1932 passed in revenue appeal No. 128/1980-81 against the decree and judgment of Sub-Divisional Officer, Kashipur district Nainital dated 4.4.1981 in a suit No, 22/34 under section 229-B of U.P. Act No. 1 of 1951. 2. In the trial court the appellant filed a suit under Section 229-B of U.P. Act No.1 of 1951 that she is bhumidhar of the suit plot No. 54/2 area 3.34 area of village Shivlalpur Dalloo, Tahsil Kashipur, district Nainital. Defendant Firaya Lal is wrongly recorded over this plot. The State Government contested the suit. Four dated were taken from the side of Firaya Lal through a counsel but no written statement was filed. The trial court framed the issues and after taking the evidence dismissed the suit on the ground that Firaya Lal is recorded as Adhivasi and now has been ordered to be recorded as bhumidhar over the suit plot Against this decree and judgment first appeal was filed before the Commissioner who also came to the conclusion that there can be no two declarations for the same property. Firaya Lal has been recorded to be as a bhumidhar after acquiring adhivasi right. Now it cannot be again declared that Smt. Prasanna Kaur is bhumidhar at the same time. 3. I have heard the learned counsel for the appellant. Learned D.G.C.(R) has argued on behalf of the respondents. Perused the record. 4. I agree with the finding recorded by the learned Commissioner. Since Firaya Lal recorded as Adhivasi and subsequently he has been ordered to be recorded as bhumidhar, therefore, remedy was open to the appellant to challenge that entry in that proceeding. This separate suit is not maintainable unless that proceeding is challenged. Both the Courts below has given concurrent finding. I therefore, do not like to interfere in the finding recorded by both courts below. Accordingly this second appeal is dismissed.