Maya Devi vs Hira Lal

Himanshu Kumar, Member.

Hira Lal filed a suit under Section 229B of U.P. Z.A. and L.R. Act, in the Court of SDO, Kol, Aligarh, which was then transferred to the Court of ASDO, Kol, asking for rights under Section 122B (4F) of U.P.Z.A. and L.R. Act. The suit was dismissed by the ASDO, Kol, Aligarh on 2581993. Against this an appeal was filed in the Court of Additional Commissioner, Agra which was allowed on 2152002 setting aside the order of the ASDO, Kol, dated 2581993. Against this order of the Additional Commissioner, this second appeal has been filed before the Board of Revenue on the grounds that the plot No. 408 was never allotted to the father of respondent No. 1, his name was never mutated in the revenue records, hence the suit in question was filed on the basis of forged documents, that the respondent No. 1 had land more than 31/8 acre and thus could not be given benefit of Section 122B (4F) of U.P. Z.A. Act, that the plot No. 408/16 was already recorded in the name of Birendra Singh but he was never made a party to the suit and that the plot in question was allotted to appellant Smt. Maya Devi in the year 1994 and her name was mutated in the revenue records but she was not made party in that suit.

On 1882006 the learned Counsel for both the parties were heard. I have perused th records carefully.

The following substantial questions of law are inherent in the second appeal.

(i) Can benefit of Section 122B (4F) of U.P.Z.A. Act be given to a person who has more than 31/8 acre of land?

(ii) Whether the appeal can be allowed without reversing the finding of the trial Court?

As regards the total land held by Hira Lal that trial Court has given clear finding that the total land including the land in dispute held by Hira Lal is 1.568 hectare of land which clearly makes him ineligible for benefits under Section 122B (4F) of U.P. Z.A. Act. The learned Additional Commissioner has merely commented on this aspect by saying that he does not agree with the logic advanced on behalf of the State that Hira Lal held land more than 3.1/8 acres. Setting aside an order in appeal necessarily requires setting aside each finding of the trial Court relevant to the case. The learned Additional Commissioner has not bothered to give a clear finding as to how the land held by Hira Lal is less than 3.1/8 acre of land, whereas the learned trial Court has recorded finding that Hira Lal holds land 1.568 hectares which is more than 3.1/8 acres.

In view of the above, the instant second appeal is allowed, the impugned order dated 2152002 passed by the learned Additional Commissioner is set aside and that of the trial Court judgment dated 2581993 is hereby upheld and sustained. Let the records be returned within a week to the Courts concerned and this Courts file be consigned to the record room.