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1992 DIGILAW 684 (ALL)

Balraj Singh v. Bhulwa

1992-05-04

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member - This is defendant's second appeal against the judgment and decree dated 28.10.1983 passed by Smt. Kuldip Ranjit Singh, Addl. Commissioner, Jhansi Division, Jhansi in Appeal No. 204/121 of 1980-81, reversing the order and decree dated 19.5.1979 passed by Sri K.K. Prasad, S.D.O. Karwi Mau District Banda in suit No. 21 of 1976 u/Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that the plaintiff Bhulwa s/o Sukhdeo filed a suit u/Sec. 209 of the Act against Balraj Singh and others with the allegation that he was sirdar of the suit plot Nos. 275 and 276-A situate in village Moharwa, pergana, Karwi, District Banda and was in possession till 1377-F. The defendant Balraj Singh forcibly occupied the plots in dispute in 1378-F causing a loss of Rs. 800/- to the plaintiff. The cause of action arose when the defendant Balraj Singh refused to vacate his illegal occupation. A prayer was, therefore, made to eject him from the land in dispute. The defendant Balraj Singh has taken the plea of adverse possession and has claimed to have perfected his rights after having been in possession for more than 12 years. The learned trial court dismissed the suit holding it as time barred. Aggrieved by this order, the plaintiff went in appeal. The learned Addl. Commissioner allowed the appeal on 28.10.1983 and passed the order of ejectment against the defendant. This second appeal has been filed against this very order. 3. I have heard the learned counsel for the parties. Sri Ratan Singh, learned counsel for the appellant has contended that the trial court has decided only one issue i.e. issue No. 3 and dismissed the suit on the point of limitation. The learned Addl. Commissioner, instead of remanding the case back to the trial court, allowed the appeal after deciding all the issues. What has been contended before me is that the appellant has lost the right of first appeal because barring issue No. 3 no other issue was decided by the trial court. His second contention is that the suit is time barred because it was filed on 2.4.1976 corresponding to 1383-F whereas the trial court has found him in possession in 1371-F. Assailing the finding of the court below, the learned counsel has contended that the learned Addl. His second contention is that the suit is time barred because it was filed on 2.4.1976 corresponding to 1383-F whereas the trial court has found him in possession in 1371-F. Assailing the finding of the court below, the learned counsel has contended that the learned Addl. Commissioner has altogether ignored the entries and possession from 1368-F, rent receipts filed by the defendant and the plaintiff's, admission. Relying on 1977 R.D. 362, he has argued that the payment of land revenue is a good proof of possession. His last submission is that the period for which the damages were ordered to be paid, has not been determined. 4. Sri S.D. Pathak, learned counsel for the respondent has contended that u/Sec. 107 C.P.C. an appellate court has all the powers of the trial court and so there is no jurisdictional error if the learned Addl. Commissioner has decided all the issues and decided the issues not touched by the trial court. His second contention is that the provisions of para A-80 and A-81 have not been observed and the mandatory provision of issuance of PA-10 has not been observed. Reliance has been placed on 1979 AWC 174 , 1980-AWC 593. His third contention is that the rent receipts are not reliable piece of evidence. Reliance has been placed on 1977 R.D. 13. On the point of limitation, he has maintained that the suit is not time barred as it was filed on 10.1.76 and the defendant came in adverse possession in 1378-F. He has further contended that all the ingredients of adverse possession i.e., actual, uninterrupted, open and exclusive are not proved. Reliance has been placed on 1982 R.D. 1. His last submission is that the court below has given findings of fact which are not to be disturbed in this second appeal. Reliance has been placed on 1969 R.D. 295. 5. I have carefully considered the arguments advanced before me and have also perused the record. The learned trial court found the defendant in continuous possession from 1372-78-F. The suit was filed on 2.4.1976 i.e., 1383-F. The learned trial court is of the view that the suit was filed after the defendant had matured his rights on the basis of adverse possession. The learned Addl. The learned trial court found the defendant in continuous possession from 1372-78-F. The suit was filed on 2.4.1976 i.e., 1383-F. The learned trial court is of the view that the suit was filed after the defendant had matured his rights on the basis of adverse possession. The learned Addl. Commissioner has reversed the findings of the learned trial court on the ground that the entries made in 1371 - 78-F are without the orders of any competent authority. The learned Addl. Commissioner has also dismissed the defendant's case on the ground that he has failed to prove his possession since 1360-F. According to her, this suit is not time barred because the defendant was found in possession in 1374-F and the suit was filed in 1383-F. Since the suit was filed within 12 years, the learned Addl. Commissioner has rightly held that the suit was not time barred. The learned court below has given findings of fact which are not to be disturbed in this second appeal. As regards her decision on the issues not touched by the learned trial court, she being the first appellate court, has all the powers of the trial court u/Sec. 107 of the C.P.C. 6. In the result, this appeal fails and is consequently dismissed.