(Old CMWP No. 4862 of 1985) v. Board of Revenue U.P. at Allahabad

Sri Lokendra Dobhal, learned counsel for the petitioners. Learned Standing Counsel and Sri Nagesh Aggarwal for the respondents. Date July 19, 2006 P.C.: Hon’ble B.S. Verma, J.] By means of this writ petition, the petitioners have prayed for issue a writ, order or direction in the nature of certiorari quashing the order dated 15.2.1980 ( Annexure No.2) passed by the Assistant Collector, 1st Class Dehradun and the order dated 25.6.1981 ( Annexure No. 4) passed by the first appellate court as well as order dated 11.1.1985 ( Annexure No.5) passed by the Board of Revenue. Relevant facts are that are the petitioner Chajju Ram and others filed a revenue suit against Mussadi and others under Section 229 B of the U.P.Z.A. and L.R. Act before the Assistant Collector for being declared bhumidhars of the suit land by way of adverse 2 possession. The suit was contested by defendant no.2 Janki and pleased that the defendants are in actual possession of the suit land and there was no question of adverse possession by the plaintiffs. The trial court framed necessary issues in the case, recorded the evidence led by the parties, heard them and after perusing the evidence, came to the conclusion that the plaintiffs got their names entered in revenue records under class 9 in collusions of Lekhpal and they were not in adverse possession over the suit land and accordingly, the suit was dismissed vide judgment and order dated 15.2.1980. From the record, it appears that the plaintiff-petitioners went up in appeal before the Commissioner Garhwal Division, who confirmed the judgment dated 15.2.1980 passed by the Assistant Collector and dismissed the appeal vide judgment and decree dated

25.6.1981. However, copy of the said judgment has not been filed along with memo of writ petition. Aggrieved, the petitioners went up in Second Appeal before the Board of Revenue, but the second appellate court also did not find favour with the appellant Chajju Ram and dismissed the appeal vide order dated 11.1.1985. The petitioners have assailed the impugned orders on the ground that the finding of fact regarding possession of the petitioners has not been appreciated properly by the courts below. The learned counsel for the petitioners vehemently argued that the first appellate court did not assign any reason to dismiss the appeal. The appeal is a continuation of the suit, while deciding the appeal the appellate court must adhere to the provisions of Order 41, Rule 31 C.P.C. The leaned Commissioner has passed a cryptic order and as such the evidence on record has not been re-appreciated by the first appellate court. Moreover, the Board of Revenue has also lost sight that no finding on the point of possession was recorded by the first appellate court. It was also submitted that the Board of Revenue had not recorded its finding on the point of above fact. 3 I have heard the rival contentions of the learned counsel for the parties and have gone through the material on record. There is some force in the argument of the learned counsel for the petitioner that the first appellate court has not given its specific finding on the point/issue in dispute, which is regarding adverse possession of the petitioners. It was however held by the second appellate court that Chajju Ram has not been in adverse possession, while the order passed by the learned Commissioner is a cryptic one and no finding on the point of possession was recorded by him. It appears that the Board of Revenue also lost sight that the case before it was second appeal and not revision, therefore, in paragraph no.5, the following observation was made:- “The finding in respect of the possession is a finding of fact and I find both the courts below have held that the revisionist Chajju Ram has not been in adverse possession on the land in dispute.” It is pertinent to mention here that the Ist appellate court did not give any finding whether the plaintiffs were in adverse possession or not and whether the entry of the plaintiffs were made in accordance with law or not. It was also not examined whether PA-10 was not in fact issued by the Lekhpal, as has been observed by the trial court. All these things, in itself, reveal that first appellate court has not properly examined the evidence on material issued and the same cannot be sustained. Accordingly, the order dated 25-6-1981 and dated 11.1.1983 passed by respondent no. 2 and respondent no.1 respectively are liable to be set aside and it is a fit case to remand the matter to the learned Commissioner for decision afresh. In the result, the writ petition deserves to be allowed. The writ petition is allowed. The impugned order dated 25-6-1981 passed by the respondent no.2 and order dated 11.1.1983 passed by the respondent no.1 are hereby set aside. The matter is remanded to the Learned Commissioner-respondent no.2 for recording a finding on the factum of possession and other findings of his own on 4 the basis of the evidence already placed on record and shall decide the appeal on merits in accordance with law and in the light of the observations made above, within a period of six months from the date of production of certified copy of the order, after affording opportunity of hearing to both the parties. No order as to costs. Interim order, dated 10-4-1985, is vacated. (B.S. Verma, J.)