Babu Lal v. Pratap

Bhairo Prasad, M.:— This reference has been made by the Addl. Commissioner Agra Division, Agra vide his recommendation dated 10.10.1988 in a revision under Sec. 333-A of U.P Act No. 1 of 1951 arising out of proceeding under Sec. 229-B/122-B(4-F) of U.P Act. No. 1 of 1951.

2. The claim of the revisionist is that the land was in his possession before 1975. Hence he has become non-transferable bhumidhar under Sec. 122-3 (4-F) of U.P Act Mo. 1 of 1951. The opposite party claimed that the land has been allotted to him and he is also landless agricultual labourer belonging to scheduled caste and the land was never in possession of the revisionist and his allotment is valid and the proceeding iniitated by the petitioner is without any basis.

3. The learned Addl. Commissioner has recommended that no opportunity was given to the revisionist giving his evidence. The trial court has not considered the whole circumstances of the case after taking the evidence of the parties as to who was best entitled to have the land.

4. Against the recommendation of the Addl. Commissioner objection was filed by the opposite parties but they have not turned up. The learned counsel for the revisionist appeared and argued that it is a dispute between the parties whether the revisionist has acquired right under Sec. 122-B (4-F) of U.P Act No. 1 of 1951, hence the land could not have been settled to the opposite parties. This is also in dispute whether the revisionist was in possession or not? If the revisionist was in possession he was entitled for the land. If he was not in possession he, vas not entitled, than the allotment in favour of the opposite parties will stand. These issues need to be discussed and decided after taking the evidence of the parties in the trial court.

5. The learned counsel for the opposite party argued that the proceeding before the Tehsildar against Babu Lal was collusive. The disputed land was allotted to the opposite party well before the proceeding started under Sec. 122-8(2) of U.P Act No. 1 of 1951. The revisionist are not in possession over the disputed land, hence no declaration in their favour can be made under Sec. 122-B (4-F) read with Sec. 229-B of U.P Act No. 1 of 1951.

6. I have seen the judgment of the learned trial court. He has not given a definite finding as to who was in possession on the material dates. There is also no evidence of the opposite party to rebut the finding of Tahsildar/Asstt. Collector under Sec. 122-b (2) of U.P Act No. 1 of 1951. In these circumstances of the case the learned trial court has not discharged the burden, therefore, his order is not sustainable and the reference is accepted and the trial court's order dated 29.1.11988 is set aside and the reference is accepted. The trial court is directed to afford opportunities to the parties in order to prove which party was in possession on the material date then to decide the suit afresh.