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1992 DIGILAW 913 (ALL)

Dinesh v. Swarup

1992-07-15

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, M. - This second appeal has been filed under Section 331(4) of U.P. Act No. 1 of 1951 against the judgment and decree of Additional Commissioner dated 18.11.1978 passed in 1st Appeal no. 149/131 of 1977 against the decree and judgment of the assistant Collector, 1st Class, Varanasi dated 21.4.1977 passed in suit under Section 229-B of U.P. Act No. 1 of 1951. 2. In brief the facts of the case are that Swarup son of Bhikoo filed a suit under Section 229-B of U.P. Act No. 1 of 1951 in the trial court. After service of summon through publication in newspaper 'Jaidesh' dated 21.2.1977 no one appeared for the defendant, hence the suit proceeded ex-parte. After taking the evidence by the trial court dismissed the suit on 21.4.1977. Against that decree and judgment first appeal was filed before the Additional Commissioner. In that appeal when summon was sent defendant appeared but the suit decreed by the first appellate court after allowing the appeal. Then this second appeal has been filed by the defendant. 3. I have heard the learned counsel for the parties and have perused the record. 4. This suit was filed on 12.10.1976. The learned Additional Commissioner decreed the suit on the ground that the plaintiff-respondent was recorded in 1356 and 1359 fasli under Clause 19 of the Khatauni. These entries have not find place in the revenue record after the enforcement of the Z.A. and L.R. Act. After the enforcement of Z.A, and L.R. Act Dinesh appellant is recorded in possession over these plots since before 1360 fasli as Khatauni 1382 to 1387 fasli indicates. The entry needed to be verified and put to scrutiny before the appellant who is recorded all through in the Khatauni and Khasra after the enforcement of U.P.Z.A. and L.R. Act. The summon in the trial court was served on the appellant through substituted service. Whenever any person against whom order is passed on substituted service of the summon the order should be set aside when he appeared and want to show cause. In these circumstances of the case I fully agree with the contention of the learned counsel for the appellant that the first appellant court should have remanded the case to the trial court for fresh trail after taking written statement and evidence of the defendant-appellant. 5. In these circumstances of the case I fully agree with the contention of the learned counsel for the appellant that the first appellant court should have remanded the case to the trial court for fresh trail after taking written statement and evidence of the defendant-appellant. 5. I, therefore, allow the appeal, set aside the decree and judgment of both courts below and remand the case to the trial court to examine the entry of 1356 fasli and 1359 fasli and if they are correct then decide the suit according to law.