S.P Pandey, Member:— This is a second appeal against the judgment and decree, dated 21.7.1998, passed by the learned Additional Commissioner, Chi-trakoot Dham Division, Banda, in appeal No. 11 of 1997-98, dismissing the same and confirming the judgment and decree dated 26.11.1997, passed by the learned Trial Court in a suit under section 202 of the UPZA & LR Act (hereinafter referred to as the Act).
2. Briefly stated, the facts, giving rise to the instant second appeal are that the LMC instituted a suit under section 202 of the Act against the defendant-appellants, Prem Chand etc. for ejectment and restoration of possession of the land in dispute to it inter-alia pleading that the defendant being asami, entered in Ziman-3, has other land of his own and has not paid rent nor has he followed terms and conditions of the lease; that the lease in question has since been expired and the earlier suit for his ejectment was allowed to Be withdrawn with permission to file a fresh suit as the same was not in proper format.
3. On notice, the defendant contested the suit, denying the allegations. The learned Trial Court, after completing the requisite trial, expunged the entry of the name of the appellant from ziman-3, ordering, the name of the plaintiff to be recorded in Ziman-5, vide its order dated 26.11.1997 Prem Chandra being aggrieved by this decree, went up in appeal before the learned Additional Commissioner who has, vide his judgment and decree dated 21.7.1998, dismissed the same, confirming the judgment and decree passed by the learned Trial Court and therefore, it is against these decrees that the instant second appeal has been preferred by him before the Board.
4. I have heard the learned Counsel for the appellant as well as the learned DGC(R) and have also perused the record, on file. Assailing the impugned order, the bone of contentions of the learned Counsel for the appellant inter-alia, in a nutshell, are, firstly, that since the suit in question has been filed without passing any resolution by the LMC as well as without issuing any notice prior to such institution, the same is bad in law as not maintainable; secondly, that the appellants being a rent-free, lease-holder from the earstwhile zamindar are in possession of the land in dispute since before the abolition of zamindari, the LMC has no locus-standi to file a suit under section 202 of the Act; thirdly, that since the appellants have matured their rights tinder section 204 of the Act by prescription of law and the LMC has also hot observed the provisions laid down under Rule 128 to 132 of the UPZA & LR Rules before filing such suit under section 202 of the Act, the same is not maintainable in law and therefore, the impugned decrees passed by the learned Courts below being illegal, perverse and without jurisdiction, cannot, at any stretch of imagination, be allowed to sustain and this second appeal, in the facts and circumstances of the instant case as well as evidence, on record, therefore, very richly deserves to be allowed in toto.
5. In support, reliance has been placed on the case law reported in 1982 RD 116. The learned DGC (R), in reply, urged that in the facts and circumstances of the instant case as well as evidence on record, the learned Courts below were perfectly justified in rendering the impugned decrees and therefore, this second appeal, having no substance, very richly deserves dismissal outright.
6. I have closely and carefully considered the arguments advanced before me by the learned Counsel for the appellant as well as learned DGC(R) and have also scanned the record, on file. On the pleadings of the parties concerned, the following substantial question of law emerges out for decision by this Court:
“Whether or not the findings recorded by the learned Courts below have been arrived at after due and proper appreciation of evidence, on record in correct perspective of law?”
7. As a matter of fact, both the learned Courts below have rejected the claim of the appellants for want of any positive evidence in support thereof. Whatever the facts would have been but the fact remains that the in stant case has been dealt with by them in rather a haphazard way, in haste. I do notice that the points raised by the learned Counsel for the appellants in respect of issuance of notice prior to the institution of the suit un der section 202 of the Act; observance of the provisions laid down under Rule 128 to 132 of the UPZA & LR Rules; limitation for filing a suit under section 202 of the Act; perfection of rights under section 204 of the Act in case the suit under section 202 of the Act has not been filed within limitation etc. have not been even touched by them. No endeavour has either been made by them to thrash out the same as the same have bearing for the correct and effective decision of the instant case and therefore, without commenting upon the merits of the case, I, in the facts and circumstances of the instant case as well as evidence, on record, am of the considered opinion that this is rather a fit case for remand to the learned Trial Court for decision afresh on merits, according to law, after affording due and reasonable opportunity of being heard and adducing evidence, if any, to the parties concerned, in the light of the observations made hereinabove.
8. In view of the above, this second appeal is, accordingly, allowed, the impugned decrees, passed by the learned Courts below are set aside and the case is hereby remanded to the learned Trial Court for decision afresh on merits, according to law, after affording due and reasonable opportunity of being heard and adducing evidence, if any, to the parties concerned, in the light of the observations made hereinabove. Let records be returned forthwith to the Courts concerned. Parties to appear before the Court concerned on 30.7.2007
9. Appeal Allowed.