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2002 DIGILAW 595 (ALL)

Sultan Ali v. Mansoor Ali

2002-04-22

GIRDHARI LAL

body2002
JUDGMENT 1. GIRDHARI Lal, J. This second appeal has been filed against the order of the learned Additional Commissioner dated 1-10- 95 by which the learned Additional Commissioner has allowed the first appeal filed by Mansoor Ali and others preferred against the order of the learned trial Court dated 26-7-88. 2. BRIEF facts of this case is that Mansoor Ali and others has filed a suit under Section 229-B of the U. P. Z. A. and L. R. Act. Plaintiff respondent has given a pedigree which is given as below: It has been stated in the plaint that plaintiff's ancestor was Alloo Shah before the time of the second settlement. The disputed land of village Karaundiya, village Harihar Ishapur and village Pyagpatti has come in the possession of his ancestors on the basis of succession. It has also been stated in the plaint that the land of village Harihar Ishapur was entered in the name of both the parties during consolidation operation. The land of village Karaundiya, and village Pyagpatti is the acquisition of Alloo Shah which has been devolved to his heirs and all the persons in the pedigree given in the plaint are in possession of the disputed land. It has also been stated that after the death of Alloo Shah the disputed land was wrongly entered in the name of Altaf Husain and Syed Ali. All the plaintiffs and defendants are co-bhumidhars of the disputed land. The suit was dismissed by the trial Court on 31-3-1984. First appeal was filed by Mansoor Ali and others which was allowed on 7-5-85 and the suit was remanded back to the trial Court with certain observations. After remand the suit was finally dismissed by the trial Court on 26-7-88 mainly on the ground that the disputed land was not acquired by Alloo Shah and plaintiffs have failed to prove that they belong to the branch of Alloo Shah. The learned Additional Commissioner vide his order dated 1-10-95 has allowed the first appeal filed by Mansoor Ali and others. Being aggrieved by this order this second appeal has been filed before the Board of Revenue by Sultan Ali and others. Heard the learned Counsel for the parties and perused the original file. 3. The learned Additional Commissioner vide his order dated 1-10-95 has allowed the first appeal filed by Mansoor Ali and others. Being aggrieved by this order this second appeal has been filed before the Board of Revenue by Sultan Ali and others. Heard the learned Counsel for the parties and perused the original file. 3. APPELLANT has framed the following substantial question of law : (a) Whether the appellate Court is justified in reversing the judgment of trial Court without upsetting the each and every finding of the trial Court? (b) Whether the appellate Court can reverse the order of the trial Court without discussing/considering any evidence on record? (c) Whether the appellate Court is justified in carving out a new case in respect of possession in favour of the plaintiff respondent whereas there was no pleading to that effect from either side nor any issue has been framed to this effect? 4. IT has been argued by the learned Counsel for the appellant that the disputed land was the sole acquisition of Altaf Husain, Syed Ali and Sultan Ali. IT has also been pointed out that in the third settlement the disputed land is recorded in the name of Altaf Husain and Syed Ali. In 1356-F the disputed land is recorded in the name of Altaf Husain. The appellant has also raised a contention that the plaintiffs are not the son of Hasan Raza and they do not belong to the branch of Alloo Shah. IT has also been pointed out that the suit is barred by Section 34 (5) of the U. P. Land Revenue Act. IT has been pointed out that the learned appellate Court has wrongly decided on the basis of presumption that the respondents ancestor was Alloo Shah. IT has also been pointed out that the rent receipts relates to the disputed land. IT has also been pointed out that only possession could not cover right and title. Only on the basis of adverse possession right can be claimed. It has been argued by the learned Counsel for the opposite party that in the village Pyagpur consolidation operation is going on therefore proceeding related to village Pyagpur will abate. It has also been pointed out that Qurban Ali and Nazar Ali who were parties before the trial Court have not been made parties in this case. It has been argued by the learned Counsel for the opposite party that in the village Pyagpur consolidation operation is going on therefore proceeding related to village Pyagpur will abate. It has also been pointed out that Qurban Ali and Nazar Ali who were parties before the trial Court have not been made parties in this case. Mainly it has been argued that due to non-joinder of parties the appeal is not maintainable. It has also been argued that after considering the evidence which were not considered by the trial Court and learned Additional Commissioner has held that on the basis of the evidence which are on record from Serial Nos. 222 to 271 possession of the respondents is proved. It has also been stated by the learned Counsel for the opposite parties that the disputed land was acquired by Alloo Shah. 5. THE dispute relates to village Pyagpur and Karaundhiya. THE questionaire filed by the respondent clearly shows that in the village Pyagpur Pargana Miranpur Tehsil and District Sultanpur Consolidation proceedings has not been finalised hence proceedings related to village Pyagpatti is abated under Section 5 (2) (a) of the U. P. C. H. Act. As far as the disputed land of village Karaundhiya is concerned, plaintiff-respondents main contention is that the disputed land was acquired by Alloo Shah and respondents belong to the branch of Alloo Shah therefore on the basis of possession they should be declared co-tenant in the disputed land. THE learned trial Court vide his order dated 26-7-88 has held that the plaintiffs do not belong to the branch of Alloo Shah. Most of the plots of the disputed land were recorded in third settlement in the name of Altaf Husain son of Alloo Shah and Besan Ali. Khatauni of second settlement which has been filed and which is Paper No. 27-Aa is in the name of Alloo Shah son of Khawaja Bux. Only Plot No. 103 area 4 biswas was in the name of Alloo Shah. No other plots which are mentioned in the third settlement in the name of Altaf Husain were never recorded in the name of Alloo Shah. In the Khatauni 1300-F which is Paper No. 34-Aa which was recorded in the name of Alloo Shah and Amjad son of Khawaja Bux. Plot Nos. No other plots which are mentioned in the third settlement in the name of Altaf Husain were never recorded in the name of Alloo Shah. In the Khatauni 1300-F which is Paper No. 34-Aa which was recorded in the name of Alloo Shah and Amjad son of Khawaja Bux. Plot Nos. 104, 105 106 and 107 were only recorded in the name of above tenants which shows that the disputed land which has been recorded in the third settlement in the name of Altaf Husain son of Alloo Shah and Besan Ali were never recorded in the sole tenancy of Alloo Shah before third settlement. It has been alleged in the plaint that disputed land is coming from the 2nd settlement in the name of Alloo Shah after the death of Alloo Shah to their heirs but the record is otherwise. It was the sole duty of the plaintiff to prove that the disputed land was acquired by Alloo Shah and after the death of Alloo Shah the same land with the same identity is coming from Alloo Shah to their heirs which the respondents have failed to prove in 1360-F, 1362-F, the disputed land is recorded in the name of Altaf Husain which are the ancestors of the appellant. 6. THE learned Additional Commissioner has not reversed the finding recorded by the trial Court and without reversing the finding recorded by the trial Court which was based on proper appreciation of the evidence on record the learned Additional Commissioner only on the number of documents which are on record from Serial Nos. 222 to 271 and without evaluating the documents only on the basis of the assumptions that the rent receipts and the plaint and written statement shows the possession of the respondent/plaintiff and only on the basis of the plaintiff's possession the learned Additional Commissioner has reversed the finding of fact recorded by the trial Court. I have perused the documents which are on Serial Nos. 222 to 271. Mainly so many rent receipts have been filed regarding the village Karaundhiya which are in the name of Altaf Husain. After perusal of these receipts it shows that they are related to the village Karaundhiya but after perusal of these rent receipts it is impossible to link with these rent receipts relates to the same disputed land for which plaintiffs filed their suit. After perusal of these receipts it shows that they are related to the village Karaundhiya but after perusal of these rent receipts it is impossible to link with these rent receipts relates to the same disputed land for which plaintiffs filed their suit. Not in a single receipt number of Khatas have been mentioned which can establish that rent receipts relates to the disputed land. Therefore only on the basis of presumption that rent receipts filed by the respondents relates to the disputed land. It is impossible to show that these disputed rent receipts relates to the disputed land. 7. THE main claim of the respondents plaintiffs was that the disputed land was acquired by Alloo Shah and after the death of Alloo Shah the same land has been inherited by their heirs but the plaintiffs have failed to prove that the disputed land was ever acquired by Alloo Shah as discussed above. As far as the possession is concerned the learned Additional Commissioner only on the basis of the rent receipts finding was recorded that the disputed land is in possession of both the parties. THErefore in absence of any documentary evidence which can show that the disputed land was acquired by Alloo Shah. Against this appellants have filed documentary evidence which shows that the disputed land was recorded in the name of Altaf Husain who were the ancestors of the appellants. THErefore the finding recorded by the learned Additional Commissioner is not based on the evaluation of any document and the learned Additional Commissioner has not reversed the finding recorded by the trial Court. THErefore the finding recorded by the learned Additional Commissioner is not based on the records. 8. IN view of this second appeal is allowed, the order passed by the learned Additional Commissioner is quashed. Appeal allowed.